England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13th June 2008

1. MR JUSTICE MITTING: This is a judicial review of the decision of the Criminal Injuries Compensation Appeals Panel, made on 4th April 2006, which rejected the application for compensation made by the widow and children of Abdulkalaq Hussein Ali, who died on 9th January 2002. The challenge is made on two grounds, for which leave was given by Sullivan J.
2. The deceased died on 9th January 2002, as a result of stabbing injuries sustained in an incident in Haydyn Park Road, Shepherds Bush, the previous day. A man called Omar was charged with his murder. He was tried at the Central Criminal Court but was found not guilty of both murder and manslaughter on 21st August 2002.
3. On 10th April 2002 the claimants made applications for compensation under the Criminal Injuries Criminal Compensation Scheme. The Criminal Injuries Compensation Authority rejected that claim on 28th October 2002. The officer who made the decision stated that he concluded that "Mr Ali voluntarily agreed to take part in the fight in which the fatal injure was suffered, in turn was seen with his brother and others following an earlier argument and was seen with a hammer in his hand."
4. That decision was then reviewed. The reviewing officer, in her decision communicated by letter of 3rd March 2004, concluded in somewhat unclear terms that "having considered all the information available, I cannot be satisfied, even on the balance of probabilities, that the victim's conduct did not contribute to the incident."
5. As the claimants were entitled to, they appealed that decision to the Appeals Panel. The Appeals Panel conducted an oral hearing and, as I have stated, on 4th April 2006, rejected the appeal. Written reasons were given 20 days later, on 24th April 2006, signed by the Chairman of the Panel, which contained its detailed reasoning.
6. The Criminal Injuries Compensation Scheme was established pursuant to sections 1 and 6 of the Criminal Injuries Compensation Act 1995. The current version of the scheme under which this claim was made is the Criminal Injuries Compensation Scheme 2001, which was approved by Parliament.
7. The relevant paragraphs of the scheme are 13(d), 15 and 64(b). They provide:

"13. A claims officer may withhold or reduce an award where he considers that ...

(d) the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all to be made...

15. Where the victim has died since sustaining the injury (whether or not in consequence of it) paragraphs 13 and 14 will apply in relation both to the deceased and to any applicant for compensation under paragraphs 37 - 44."

"64. The standard of proof to be applied by the Panel in all matters before it will be the balance of probabilities. It will be for the appellant to make out his case including where appropriate ...

(b) satisfying the... adjudicators responsible for determining his appeal that an award should... be ... reduced under any provision of this Scheme."

8. In non statutory guidance the authority explained to applicants how it would apply the scheme. The guidance relevant to paragraph 13(d) was given in paragraphs 15 to 17 of Part 4 of the guidance. Paragraphs 15 notified the applicants that "if your own behaviour caused or significantly contributed to the incident in which you were injured, we will normally refuse or reduce an award." Paragraph 16 went on to give examples of situations in which the authorities might refuse or reduce an award, examples which included circumstances in which the injury was caused in a fight, in which the claimant had voluntarily agreed to take part. Paragraph 17 stated that an award might be refused even if the person who attacked the applicant is convicted of a violent crime.
9. Paragraph 25 explained that the rules would apply if the victim died, so as among other matters, taking into account the conduct of the victim.
10. Paragraph 8 of Part 5 explained that the authority would apply the standard and burden of proof set out in paragraph 64(b) of the scheme.
11. The decision of the authority, of the reviewing officer and of the Appeal's Panel was to refuse to make any award under paragraph 13(d).
12. The evidence given at the trial of Omar was, in the opinion of the police officers who investigated the incident, partial and confused. Some of the witnesses supported the deceased man, in particular his brother. Some supported Omar, in particular a man called Kholay, who it seems had either started or participated in the argument which set off the incident in the first place.
13. There was one independent witness, Darren Burns, regarded by the police officers as generally a reliable witness, who described the end of the whole incident in which the victim was stabbed in terms which were believed to be reliable. His evidence did not say much about the matters upon which the Appeals Panel went on to refuse to make an award.
14. Detailed submissions were made at the appeal hearing by the solicitor, Mr White, who appeared for the claimants. The reasoning of the Panel was not lengthy, it was contained in a document of 11 paragraphs. It began by identifying part of the scheme under which it was making its decision, paragraph 13(d) and reminding itself of the burden and the standard of proof. The only witness called before the Panel was the officer in charge of the investigation, Detective Inspection Charles King. The Appeals Panel noted that, in his view, the witnesses did take sides.
15. The officer stated that he had concluded that the deceased had had an argument with Kholay in the house, at 90 Haydyn Park Road, and that the deceased had left and having done so, telephoned his brother and asked him to come to the scene to help him. The officer went on to say that his brother and others eventually arrived and that Omar came out of the premises and stabbed the deceased three or four times in a fight which occurred in the middle of the road outside the property.
16. There was evidence that a hammer was used by the deceased's brother and even perhaps by the deceased after he had been stabbed. The officer's view of that was that the deceased's brother had arrived at the scene with a hammer which was used in a fight, although the deceased's brother denied any hammer had been taken to the scene. In the officer's view the independent witness, Burns, was the most reliable witness of those who gave evidence.
17. He expressed his conclusion in these words: "I believe that the deceased was having an argument. He left the premises and called for reinforcements to continue the argument. He had little doubt that when they were fighting a hammer had been used."
18. The Appeals Panel went on to note Mr White's submissions and those made by the advocate seeking to uphold the authority on the review.
19. The Panel's decision was contained in paragraphs 10 and 11 of its written reasons which I set out in full:

"10. We have considered these submissions in this case. The available evidence is somewhat confused but we are materially assisted by the evidence of Detective Inspector King. He gave us the strong impression that he made a careful assessment of the probable situation that had developed on that night. He made it clear that in his opinion the deceased had an ample opportunity to simply leave the scene. He confirmed that the evidence indicated that the deceased and his brother both used the hammer which was not found after the incident. The officer said in evidence 'my impression is that the deceased had every opportunity to leave the house and the area but waited for his brother and another to come so he could start a fight. I believe that the brother and his friends brought the hammer with them.'

11. We have every sympathy with the Applicants in this case. However, we have reached the conclusion that it would be inappropriate to make an award in this case. We take on board [Mr White's] submission that paragraph 13(d) should not be applicable. We cannot agree with that submission. We consider that 'conduct' not only includes the aspect of culpability but must include the actions that a person may take or refrain from taking in certain situations. In this case, we are satisfied that there had been a serious argument between the two faction. The evidence indicates that the deceased had been 'wound up' by Kholay and probably insulted. It is probable that this was a clan or tribal disagreement or contention. The evidence indicates that earlier the deceased's Clan was accused of committing rapes in Somali. Such a suggestion would be likely to upset and antagonise him. With that background, the deceased left number 90. There is no evidence before us to show that he was actually bundled out of the house but he chose not to leave the area. Unfortunately, we consider that it is probable, as the officer has indicated, that the deceased telephoned his brother and others for help and reinforcement with a view to continuing the argument or the fight. We do not accept [Mr White's] submission that it was probably that the deceased merely wanted assistance so that he could peacefully re-enter number 90 which is a property that we are told is used by Somali nationals as a meeting place. Although there is no direct evidence to indicate that the deceased knew that his brother was bringing a hammer with him, we consider that it must have been foreseeable that someone who came to help might carry a weapon. We reached this conclusion because it seems reasonably obvious that anyone asked to attend in those circumstances was likely to come with a weapon. We consider that it is probable that the alleged offender upon seeing the deceased in the road outside number 90 with his supporting group became enraged and went out to fight. He did so with the most dreadful consequences. We have carefully considered whether or not it would be appropriate to make a reduced award to the Applicants on these facts but we regret to say that we have reached the conclusion that it would be inappropriate. It is extremely unfortunate that the deceased chose to stay in the road outside number 90 and call for reinforcements or help. As we have indicated, he should have left the area because to remain where he did in those circumstances was appropriate conduct."

20. Mr Cragg, for the claimant, submits that those reasons were inadequate to inform the claimants' why the Appeals Panel had decided to make no award as opposed to merely a reduced award and that the decision of the Panel to make no award was irrational.
21. There is no doubt about the test to be applied in the reasons challenge. It is accurately stated in the leading case in the Court of Appeal on challenges under this scheme, in the judgment of Aldous LJ in R v Criminal Injuries Compensation Board ex parte Cook 1 WLR 1037, at 1043 C and to D:

"...it is clear that the board's reasons should contain sufficient detail to enable the reader to know what conclusion has been reached on the principal important issue or issues... "

22. As to that challenge, in my judgment, the Appeals Panel expressed itself clearly and did tell the claimant that the conclusion that it had reached on the principal issue or issues which it had to decide and the reasons for it.
23. It was decided that the deceased man was culpable and unwise in his conduct in the respects identified by it, so as to disentitle the claimants from compensation under the scheme. That conduct can be summarised in this way: that having been angered by an argument within the house with Kholay, instead of leaving the house and the scene, he remained outside the house and summoned reinforcements, whose purpose, on the express findings of the Panel, was not to lend assistance so that he could peacefully re-enter number 90, who were foreseeably armed with a weapon, the hammer, and who were summoned "to continue the argument or fight".
24. What the Panel found was not just foolish conduct on the part of the deceased mean, but, in terms, conduct which was self-evidently culpable.
25. The reasons challenges merges into the rationality challenge. Mr Cragg accepts that the test is that set out in R v Criminal Injuries Compensation Board ex parte Thompstone [1984] 1 WLR 1234, in which Sir John Donaldson, at page 1239 stated:

"The Crown has left the decision to the board and the court can and should only intervene if the board has misconstrued its mandate or its decision is plainly wrong."

It is not suggested by Mr Cragg that the Board (in this case the Appeals Panel) misconstrued the mandate. His submission is that the decision was plainly wrong.

26. Once the findings of the Panel are properly understood, that submission is plainly untenable. For a man, who had left the house, following a serious argument with another man in the house, to remain outside with a view to continuing the argument or fight, then to summon the reinforcements, not for the purpose of re-entering the house peacefully but to continue the argument or fight, whom he realised might well be armed, was undertaking actions which were calculated to provoke violence or to give rise to the occasion for violence. It is conduct which does not fit precisely within the example given in paragraph 16 of the Authority's guidance but it comes very close to it. These were deliberate actions. They were not the actions of a man the subject of an unprovoked violent attack, who responded unwisely; they were the actions of a man calculated to produce a situation in which violence would occur.
27. In those circumstances, as the authority indicated in its guidance, the fact that the deceased man got very much more than he bargained for was, as the Panel observed, very unfortunate, but it does not leave his widow and children with a claim under the scheme which it would be perverse to reject in full.
28. On the facts, as found by the Panel, it was clearly entitled to reach the conclusion that no award at all should be made and gave adequate reasons for that conclusion. Its decision is not, in my view, open to successful challenge.
29. For those reasons I reject this claim.
30. MR CRAGG: A short application, the first one for detailed assessment of the claimant's costs.
31. MR JUSTICE MITTING: Certainly.
32. MR CRAGG: The second one is briefly to apply for permission to appeal on the basis that there is a reasonable prospect that the Court of Appeal will reach a different conclusion on the rationale of the reason grounds. Also because your Lordship's judgment has serious financial implications for the claimants in this case, given the level of claims. There may be a compelling reason otherwise by the Court of Appeal may wish to consider this.
33. MR JUSTICE MITTING: I refuse that application. I do not believe there is a realistic prospect of success in the Court of Appeal and this case gives rise to no wider issue than arises out of its own facts.