Neutral Citation Number: [2011] EWCA Civ 400
Case No: C3/2010/2079
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Nicol J, HHJ Sycamore and UTJ Mesher
07/222710
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12th April 2011

Before :

LORD JUSTICE MUMMERY
LORD JUSTICE RIX
and
LORD JUSTICE PATTEN
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Between :

	GARETH OWEN JONES
(APPOINTEE MRS MAUREEN CALDWELL)	
Appellant	
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	FIRST TIER TRIBUNAL
(SOCIAL ENTITLEMENT CHAMBER)	
Respondent	
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	CRIMINAL INJURIES COMPENSATION AUTHORITY	Interested Party	

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Robert Glancy QC (instructed by Pattinson & Brewer) for the Appellant
Ben Collins (instructed by Treasury Solicitor) for the Interested Party
The Respondent did not appear and was not represented

Hearing date : 4th March 2011

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Judgment

Lord Justice Patten : 
Introduction
1.	At about 2.20 am on 18th January 2005 the appellant, Mr Gareth Jones, was driving a Highways Agency gritter lorry along the nearside carriageway of the A282 north of the Dartford River Crossing.  The A282 is a six-lane dual carriageway which links the Dartford Crossing bridge and tunnel to the M25 motorway.  Slightly ahead of Mr Jones’ vehicle was an articulated lorry travelling in the central lane of the north bound carriageway.  This was driven by Mr Brian Nash.
2.	As the articulated lorry approached a car parked on the hard shoulder of the carriageway, a man (Mr Barry Hughes) ran from near the car into the middle of the central carriageway, turned towards Mr Nash’s lorry, and raised his arms.  Mr Nash braked but was unable to avoid hitting Mr Hughes who was killed instantly.  As a result of braking, the rear nearside corner of the articulated lorry strayed into the path of the gritter lorry and a collision occurred.  The cab of Mr Jones’ vehicle was destroyed and he was thrown from the vehicle on to the road.  He suffered quite catastrophic injuries and now requires full-time residential care.
3.	On 17th May 2007 (acting by his mother, Mrs Maureen Caldwell) Mr Jones applied to the Criminal Injuries Compensation Authority (CICA) for an award of compensation under the Criminal Injuries Compensation Scheme 2001 (“the Scheme”).  The Scheme was made on 1st April 2001 under the powers contained in s.1 of the Criminal Injuries Compensation Act 1995.  Section 1 of the Act provides (so far as material) that:
“(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.”
4.	Paragraph 6 of the Scheme provides that:
“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;”
5.	The definition of “criminal injury” is contained in paragraph 8 of the Scheme:
“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.”
6.	There is no further definition in the Scheme of what is meant by a “crime of violence” but “personal injury” is stated in paragraph 9 of the Scheme to include:
“… 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…”
7.	Although the application for compensation was made outside the two-year time limit, the CICA waived any objection that it was out of time and accepted the claim for consideration.  But on 6th March 2008 Mr Jones was informed by the CICA that it was unable to make an award under the Scheme.  The reasons given were that:
“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.”
8.	Mr Jones requested a review of the decision but in a decision letter of 29th May 2008 the CICA stated that it remained of the view that the injuries suffered were not attributable to a crime of violence.
9.	Mr Jones then appealed to the First Tier Tribunal (“FTT”).  Although an open verdict had been reached at Mr Hughes’ inquest, the FTT reviewed the evidence and made the following findings of fact:
“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.”
10.	Suicide is no longer a criminal act but, before the FTT, counsel for Mr Jones contended that Mr Hughes had committed two criminal offences: (i) intentionally and unlawfully interfering with a motor vehicle contrary to s.22A of the Road Traffic Act 1988 (“the 1988 Act”); and (ii) inflicting grievous bodily harm contrary to s.20 of the Offences against the Person Act 1861 (“the 1861 Act”).  The FTT were not satisfied that an offence under s.22A had been committed or that any such offence amounted to a crime of violence within the meaning of the Scheme rules.  That conclusion is not challenged on this appeal and I need say no more about it.  But the FTT also rejected the claim based on a s.20 offence.  Their reasons are set out in paragraphs 37 and 38 of the decision as follows:
“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”.
11.	Before coming to the substance of the FTT’s reasoning it is necessary to say something about the law relating to s.20 and the authorities on what constitutes a crime of violence within the meaning of the Scheme.
12.	Section 20 of the 1861 Act provides that:
“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…”.
13.	In R v Savage [1992] 1 AC 699 Lord Ackner (quoting from Diplock LJ in R v Mowatt [1968] 1 QB 421 at p. 426) said that:
“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).”
14.	In R v Burstow [1998] AC 147 the House of Lords held that a direct physical assault was not necessary under s.20.  A defendant could “inflict” grievous bodily harm on a person by conduct which resulted in psychiatric injury.
15.	Perhaps the leading authority on what is meant by a crime of violence is the decision of the Court of Appeal in R v Criminal Injuries Compensation Board ex parte Webb [1987] 1 QB 74.  This was concerned with the not uncommon cases of persons committing suicide by throwing themselves in front of trains.  Section 34 of the 1861 Act creates a specific offence of unlawfully endangering the safety of a person conveyed upon a railway.  Claims by the drivers of the trains based on the psychiatric injuries they had suffered were rejected by the Board on the ground that a s.34 offence did not amount to a crime of violence.  The Court of Appeal held that “crime of violence” was not a term of art and that the Board had to apply to the words what was described as “a reasonable and literate man’s understanding” of the circumstances in which compensation could properly be paid.  As to this, Lawton LJ (at p. 79H) said that:
“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 [1973] A.C. 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.”
16.	The original compensation schemes for criminal injuries were not limited to “crimes of violence”.  The 1964 scheme provided for compensation to be paid in all cases where the personal injury suffered was directly attributable to a criminal offence; the arrest or attempted arrest of an offender; or the prevention of an offence.  This remained the position until 1969 when the scheme was amended to restrict compensation to injuries attributable to “a crime of violence (including arson and poisoning)”.  The other specified grounds for compensation remained the same.  The rules continued in this form until after the decision in Webb.  As a result of that, the problem of suicides on the railways was dealt with by including within the definition of criminal injury in paragraph 8 of the Scheme personal injuries which result from a trespass on the railway.  But there has been no equivalent change in relation to road traffic suicides perhaps because they tend to be much less common in practice though, as this case demonstrates, no less horrific in their consequences.  
17.	There is no statutory right of appeal against the decision of the FTT but its decisions are subject to judicial review by the Upper Tribunal (Administrative Appeals Chamber) under the provisions of s.15 of the Tribunals, Courts and Enforcement Act 2007.  In order to succeed on such an application the FTT has to be shown to have erred in law in reaching the decision under review.
18.	The Upper Tribunal (Nicol J, HH Judge Sycamore and Judge Mesher) in a decision released on 11th June 2010 accepted that the necessary mens rea for an offence under s.20 was that the defendant either intended or foresaw that his unlawful act might result in some physical harm to some person.  On the facts found by the FTT it was established that the actions of Mr Hughes in running into the road in front of the articulated lorry had caused the injuries to Mr Jones.  There had been no break in the chain of causation due to any lack of competence on the part of Mr Nash as a driver.  His attempt to brake and the effect of that on his own vehicle and on Mr Jones were all directly attributable to the actions of Mr Hughes.  If and so far as necessary (which I doubt) it was also open to Mr Jones to rely on the doctrine of transferred malice in relation to the harm which he suffered.  
19.	The Upper Tribunal expressed no view as to whether a s.20 offence amounted to a crime of violence within the meaning of the Scheme.  They concentrated instead on the findings and conclusions of the FTT (contained in paragraphs 37 and 38 of their decision quoted in para 10 above) that Mr Hughes did not have the necessary mens rea for the commission of the offence.
20.	The Upper Tribunal was satisfied that this was a conclusion which was properly open to the FTT and which did not therefore amount to an error of law.  They set out their reasons as follows:
“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.”
21.	It is common ground on this appeal that Mr Hughes’ conduct included the actus reus of a s.20 offence.  The two issues therefore to consider are whether the FTT’s conclusion that the necessary mens rea of recklessness had not been established was a permissible conclusion on the evidence and whether they were right in their view that Mr Hughes had not committed a crime of violence within the meaning of the Scheme. 
22.	The approach of the FTT to these issues in the context of highway suicides has not been a consistent one.  We were referred to a decision of the FTT made in May 2010 in the case of Fuller in which, on seemingly near identical facts, compensation was awarded to the driver of a lorry who suffered psychiatric injuries after a man had thrown himself in front of the vehicle.  The CICA both originally and after a review had refused compensation on the ground that recklessness under s.20 could not be inferred in the case of a suicide.  The review letter had concluded that:
“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.”
23.	This was overturned by the FTT on appeal, although there was no reasoned decision.  Mr Collins, on behalf of the CICA, submitted that the question whether a crime of violence has been committed is essentially a question of fact for the CICA or, on appeal, the FTT.  It would, he says, have been open to them on the facts of this case to reach a decision either way.  Both would have been a legitimate outcome based on the relevant material.
24.	The question whether a criminal offence has been committed and whether the applicant’s injuries are directly attributable to that offence are undoubtedly questions of fact for the CICA or the FTT.  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 s.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. 
25.	A decision that a s.20 offence has been committed necessitates findings that Mr Hughes inflicted grievous bodily harm on Mr Jones by acting in a way which he at least foresaw would cause some degree of harm.  Some offences such as manslaughter can range in seriousness from what (but for a defence of provocation or diminished responsibility) would amount to murder to a case where no subjective appreciation of the consequences is relied on and the prosecution depends upon an act of gross negligence.  The spectrum of culpability this involves clearly requires each case to be considered separately.  A s.20 offence is not in this category.  It involves the infliction of serious bodily harm by conduct which the accused himself foresees will cause some harm to the victim or another person.  
26.	Most reasonable people faced with those facts would, I think, conclude that this was a crime of violence.  The accused is responsible for the physical consequences of his actions and has an appreciation that he will cause some harm.  The emphasis placed in Webb on the nature rather than the consequences of the criminal act was intended to exclude offences where although the victim suffers serious bodily or mental injury, those are the result of an act of negligence or at least an absence of any intention to bring about such consequences.  But where the infliction of that type of harm is accompanied by intention or foresight of harm on the part of the accused, it is difficult to see how it can legitimately be said not to amount to a crime of violence on any reasonable interpretation of that phrase.  The accused has used a degree of physical force so as to inflict serious harm.
27.	Mr Collins was keen to emphasise the reference by Lawton LJ in Webb to the meaning of “crime of violence” being very much a jury point.  But that was said in the context of his stated reluctance to attempt to produce an exhaustive definition of the term.  To say that it is difficult to articulate the precise limits of a given description does not mean that there is no wrong answer in marginal cases.  Even if the elephant has to appear in the room before you recognise it, the outcome is still a certain one. 
28.	I therefore reject the view of the FTT set out in paragraph 37 of its decision (see paragraph 10 above) that Mr Hughes’ actions in throwing himself in front of the lorry could not amount to a crime of violence.  The reference to the need to demonstrate a hostile act directed towards the victim, in my view, expresses the test too narrowly and is inconsistent with the statement in Webb that not all crimes of violence involve the infliction or threat of force.  If a s.20 offence was committed by Mr Hughes then there was a crime of violence in this case.
29.	That leaves the question of mens rea.  Mr Glancy QC for Mr Jones submits that the FTT’s conclusion that it could not be satisfied that Mr Hughes was at least reckless as to his actions causing some harm was a perverse one and therefore amounted to an error of law.  He says with some force that it is simply impossible to believe that anyone who runs into the path of swift-moving vehicles of that kind on what, even at 2.20 am, was still a busy road does not at least foresee that he may cause some harm to road users and their passengers.  The risk of an accident occurring are simply overwhelming.  Therefore the only conclusion open to any reasonable tribunal on the facts of this case was that Mr Hughes did have the mens rea necessary for the commission of a s.20 offence.
30.	The FTT’s conclusion (summarised in paragraphs 35 and 38 of its decision) was that there was no evidence that Mr Hughes deliberately intended to cause harm to other road users or was reckless as to the possibility of causing such harm.  They were clearly much influenced by the evidence of P.C. Sexton who produced a report on the accident containing details of the speed of the vehicles driven by Mr Nash and Mr Jones and the physical circumstances of the accident.  In that report he expressed no views about Mr Hughes’ mental state nor was it appropriate for him to do so.  His report was concerned with how the two vehicles came to collide and the consequences of them doing so.  But at the hearing before the FTT he was asked whether he believed that Mr Hughes’ actions were designed to cause an accident as opposed to committing suicide.  He said that, in his opinion, Mr Hughes had intended to kill himself and he chose a large vehicle such as the articulated lorry to make it as certain as possible that this would be the result.  The drivers of such vehicles are inevitably shocked by what happens but usually suffer no physical injury.  He expressed the view that Mr Hughes probably intended to kill himself rather than to cause an accident but that any decision about a prosecution (had Mr Hughes survived) would have been a matter for the CPS rather than for him.
31.	The FTT accepted this evidence as supporting the view that Mr Hughes had suicide as his primary aim and that it could not be satisfied that Mr Hughes either intended to cause harm or was reckless in that regard.  The difficulty, however, about this is that P.C. Sexton was responding to a question put to him at the hearing and was not seeking (nor was he qualified) to provide any expert evidence as to whether a person with a suicidal intent blanks out the possibility of harm being caused to others by his actions.  The officer could give no admissible evidence on this nor is it clear what facts he based his opinion on.  The FTT should therefore have considered whether, on the balance of probabilities, it was likely that some harm was foreseen without attributing any evidential weight to the officer’s views on this matter.  That was a question for them to decide.
32.	It is, of course, for Mr Jones to prove that Mr Hughes had the necessary mens rea but the absence of direct evidence about his actual state of mind does not mean that there was no evidence capable of supporting the necessary inference that he must have foreseen the likelihood of harm being caused to persons other than himself.  I accept Mr Glancy’s submission that it is highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the very least foresee the possibility of an accident and, as a consequence, harm being caused to other road users.  A possible mitigating factor is the effect of a suicidal intent on what would otherwise be the accused’s state of mind but the FTT had no evidence to assist them on this.  They also appear to have given no consideration or weight to the obvious possibility even likelihood of the risk of an accident.  Instead they assume in paragraph 35 of the decision that an intention to commit suicide is necessarily inconsistent with a deliberate intention to cause harm.
33.	If the alternatives are put in those extreme terms it becomes easier to exclude the mens rea for a s.20 offence.  It will rarely be the case that a person who runs in front of a lorry intending to kill himself also positively intends to cause harm to the driver concerned and other road users.  But my concern about how the FTT approached its task is that it appears to have concentrated on these as the relevant alternatives.  This may have been because of the view it took about what was capable of constituting a crime of violence: i.e. a hostile act directed towards the victim: see paragraph 37 of the decision.  
34.	If, as explained earlier, a broader test is appropriate and a s.20 offence involving recklessness is sufficient to come within the Scheme then the fact-finding exercise needs to be differently focussed.  In paragraph 38 the FTT refers to recklessness but this is an unreasoned conclusion which is not based on its earlier findings of fact.  Moreover, as Mr Glancy pointed out, the terms of paragraph 38 suggest that the FTT may have misunderstood what recklessness involves and did in fact make a finding of recklessness when they say that Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions. 
35.	In these circumstances, the decision of the FTT does, in my view, involve an error of law both in terms of the directions given on the test to be applied and in relation to their finding that there was no evidence from which foresight of some harm on the part of Mr Hughes could be inferred.  We were pressed by Mr Glancy to quash the decision and to substitute a finding that Mr Hughes had the requisite mens rea for a s.20 offence.  He accepts, however, that such a course could only be justified if that was the only possible outcome on a consideration of all the relevant facts.
36.	I consider that we should not take that course but should instead quash the decision and remit the matter back to a differently constituted FTT to reconsider the issue of recklessness in the light of this judgment.  It will then be for that tribunal to assess the probability or not of Mr Hughes having the necessary foresight of some harm resulting from his actions in the light of the relevant and admissible evidence.
37.	I would therefore allow this appeal and grant judicial review of the FTT’s decision on those terms. 
Lord Justice Rix :
38.	I agree.
Lord Justice Mummery :
39.	I also agree.