Scottish Court of Session Decisions

On 21 November 1989, the reclaimer applied to the respondents for payment of an award of compensation. Her application was initially refused by a single member of the respondents and was later referred to a hearing before three members. By a written decision, dated 13 January 1992, the reclaimer's application was refused. She then made an application to the court for judicial review but that was refused by the Lord Ordinary on 13 May 1992. She thereafter enrolled a reclaiming motion, which came before us on 8 and 9 October 1998. Counsel who appeared for the reclaimer had only become involved in the case relatively recently and was unable to provide any explanation for the extraordinary delay which has occurred.

The facts out of which the application to the board arose are narrated in the board's written decision and in the opinion of the Lord Ordinary. In summary, the appellant became friendly with a man named Kenneth Watson in 1987. Watson

attempted to persuade her to have sexual intercourse with him but she initially declined. On a number of occasions during 1988, Watson asked the appellant to marry him but she declined that proposal also. Eventually, however, after the proposal had been renewed, she became engaged to him on 10 December 1988. She understood from what he had told her that he was divorced and had been for a number of years. The appellant and Watson had sexual relations on one occasion before their marriage which took place on 24 March 1989. Thereafter they resided together and had sexual intercourse on about six occasions. On 21 August 1989, Watson disappeared. The appellant reported his disappearance to the police who later found him living in Carlisle under the name of Kenneth Murray Dolman with a woman to whom he was married and with her children. The written decision continues:

As the Lord Ordinary points out, it is not quite clear whether the board accepted the applicant's evidence on all these matters but for the purpose of these proceedings it can be assumed that these facts were accepted. The ground of the refusal of the application by the board was that the appellant was not a victim of a "crime of violence" and therefore had no claim under the scheme and the Lord Ordinary agreed with that view.

It is convenient to begin by narrating the history of the scheme for compensation for victims of certain crimes. The scheme was first announced in Parliament on 24 June 1964 and came into operation on 1 August 1964. The scheme was headed "Compensation for victims of crimes of violence". Paragraph 5, which was headed "Scope of the scheme" provided inter alia:

The board found some difficulty in defining the cases which fell within the scope of the scheme, as it initially stood. These difficulties are explained in the third report of the board for the year ended 31 March 1967. In particular, there was difficulty in deciding what sort of offence was covered by the scheme. In consequence, amendments were made to the scheme. The scheme which was in force at the time relevant to the present claim was the scheme of 1979. Paragraph 4 of that scheme provided inter alia:

It is relevant to part of the argument in this case to add that an attempt was made by the Criminal Justice Act 1988 to put the scheme on a statutory basis. Section 109 of that Act contained an attempt to define what was meant by "criminal injury". A number of specific offences were listed in subsection (3). Subsection (1)(a) provided that any personal injury caused by conduct constituting one of those offences should be a criminal injury for the purposes of the Act, and also that the term should include

That definition followed the lines of a suggested definition of a "crime of violence" put forward by Watkins L.J. R. v. C.I.C.B. ex parte Warner [1985] 2 Q.B. 1069. However, as will be seen later, Watkins L.J.'s suggestion was not followed in later authority. The relevant provisions of the Criminal Justice Act 1988 were never brought into force and when the scheme for compensation for criminal injuries was eventually put on a statutory footing by the Criminal Injuries Compensation Act 1995, no statutory definition was introduced. The result is that compensation continues to be payable for injuries directly caused by crimes of violence, but there is no definition of such crimes, either in legislation or in any scheme.

So far as case law is concerned, the question "What is a crime of violence?" arose in a series of cases concerned with the consequences of suicides. The first was R. v. C.I.C.B. ex parte Clowes [1977] 1 W.L.R. 1353, a case in which a person committed suicide by knocking the top off a gas pipe and a police sergeant suffered injuries in a subsequent explosion. In that case, a divisional court held by a majority that a crime of violence had been committed. The judges in the majority did not seek to provide an exhaustive definition of the term but Eveleigh J. said, at p.1359, that a personal injury directly attributable to a crime of violence meant, in his opinion, "personal injury directly attributable to that kind of deliberate criminal activity in which anyone would say that the probability of injury was obvious" and Wien J. said:

The next case was R. v. C.I.C.B. ex parte Parsons 19 May 1981 and 19 November 1982, unreported, in which both Glidewell J. and the members of the Court of Appeal expressed some doubt about the approach which had previously won favour but, because of a concession made before the hearing before the board, did not feel able to take the question further. The issue then arose again in R. v. C.I.C.B. ex parte Warner. That was one of a group of cases in which engine drivers claimed compensation for the consequences to them of suicides committed by, for example, persons jumping in front of a train. Watkins L.J. questioned the approach taken in ex parte Clowes on the ground that it was too wide and would permit compensation to be recovered in cases of breach of regulatory requirements, such as those of the Factories Act. The court held that there had been no crime of violence and that, despite the previous practice of the board, the plain meaning of the words did not cover the sort of event that had occurred in that case. At the end of his judgment, however, Watkins L.J. observed that it was unsatisfactory to have no definition or reasoned explanation of the term and added:

It was that passage which appears to have influenced the drafting of the Criminal Justice Act 1988, to which we have already referred. The group of cases which had been dealt with in ex parte Warner, however, went to the Court of Appeal. The decision of the Court of Appeal is reported as R. v. C.I.C.B. ex parte Webb [1987] 1 Q.B. 74. The decision of the court was given by Lawton L.J. who examined and criticised the previous decisions and said:

The approach recommended by Lawton L.J. was followed by the Lord Ordinary in the present case and by Lord Cameron of Lochbroom in Craig, Petitioner 10 December 1992 unreported. That approach does not appear to have been the subject of any adverse criticism in any commentary on the scheme. Counsel for the appellant in the present case made some attempt to pray in aid the definition of a crime of violence suggested by Watkins L.J. in the passage which we have quoted, but, in view of the whole history and the evident difficulty of arriving at any definition which is likely to prove satisfactory, there seems to us to be no realistic alternative to Lawton L.J's approach, which, in any event, seems to us to provide a reasonable and practical approach to the problem in any case.

In the present case, it appears that the submission made on behalf of the appellant to the board was that Watson had committed rape, which was a crime of violence. The board rejected that argument, stating, simply, that they were not persuaded that either rape or any other crime of violence was committed when a woman was persuaded to have sexual intercourse with a man by false pretences of the nature of those made in the present case. Before the Lord Ordinary, it was not submitted that rape had been committed but it was submitted that the crime of procuring sexual intercourse by false pretences had been committed, and reference was made to section 2(b) of the Sexual Offences (Scotland) Act 1976. It was further submitted that Watson's conduct was analogous to indecent assault, such as occurs when a man has sexual relations with a sleeping woman. It was therefore argued that, viewing the conduct of Watson in the light of its effects on the appellant, a crime of violence had been committed. The Lord Ordinary followed the approach favoured by Lawton L.J. and said that in that approach the answer to the question whether the acts of sexual intercourse were crimes of violence must be in the negative. He said:

On behalf of the reclaimer, it was submitted that the Lord Ordinary had erred and that the court should hold that the reclaimer was entitled to compensation as a victim of a crime of violence. As we have mentioned, initially counsel for the reclaimer drew attention to ex parte Warner supra and suggested that the question should be approached along the lines indicated by Watkins L.J. He went on, however, to draw attention to two articles by Dr. Peter Duff, one entitled "Criminal Injuries Compensation and Violent Crime" 1987 C.L.R. 219 and a second entitled "Criminal Injuries Compensation: The Symbolic Dimension" 1995 J.R. 102, and to suggest that in the light of the absence of any fundamental principle to distinguish between what is and what is not a crime of violence the court would be entitled to take the view that, as had been suggested, what mattered was whether the crime would shake the faith of people in society and to hold that in this case that condition was satisfied. The reclaimer had suffered injury as a result of agreeing to sexual intercourse against a background of deception. If consent was obtained by fraud there was no consent at all. The reclaimer could not consent to an unlawful act, and since the man in question was married already, intercourse was, whether regarded as aggravation of bigamy or as a separate crime, unlawful. Counsel referred to H.M.A. v. Fraser (1847) Ark. 280 and suggested that for this purpose the minority view in that case should be followed, with the consequence that the obtaining of sexual intercourse by fraud was rape. If, however, the majority decision in Fraser was not wrong, that was not fatal to the reclaimer's case because there could not be consent to an unlawful act, and therefore intercourse obtained by fraud was criminal. Counsel referred in addition to H.M.A. v. Sweeney (1858) 3 Irv. 109 and Hussain v. Houston 1995 S.L.T. 1060, as showing that there could be indecent assault when consent to an act was obtained by fraud. Reference was also made to H.M.A. v. Logan 1936 J.C. 100 and Stallard v. H.M. Advocate 1989 S.C.C.R. 248. The possible crimes in this situation were rape, indecent assault, and contravention of section 2 of the Sexual Offences (Scotland) Act 1976, as well as bigamy. Reference was also made to Young v. McGlennan 1991 S.C.C.R. 738 and Smart v. H.M. Advocate 1975 JC 30. Here there was a deliberate act carried out with the intention of obtaining sexual intercourse, and the perpetrator knew of, or at least was reckless in relation to, the possibility that injury would result. Violence was constituted by intercourse unprotected by consent. The board therefore should not have disabled itself from considering that there might be a crime of violence in this case and the decision should be quashed and the matter remitted to them.

On behalf of the respondents, it was submitted that there were five possible crimes to be considered, of which three could have been committed in the circumstances of this case. The five were bigamy; fraud, including the crime held relevant in Fraser supra, namely the obtaining of intercourse by misrepresentation of a material fact; rape; breach of section 2 of the Sexual Offences (Scotland) Act; and indecent assault. However, the authority of Fraser supra excluded both rape and indecent assault, and bigamy was plainly not a crime of violence. As regards the remaining two possible crimes, there were two propositions which underlay the reclaimer's position namely (1) that there was a crime of violence in any case in which the perpetrator of an act knew or ought to have known that injury would result from his crime and (2) that sexual intercourse both before and after the marriage amounted to a crime of violence because the reclaimer's consent was vitiated by fraud. The first proposition involved an approach to the definition of a crime of violence which had consistently been rejected as too wide. As regards the second, the critical distinction was between a case in which a person consented to a sexual act in fact and one in which the victim did not so consent in fact. In the latter case there might be a crime of violence, but where there was consent in fact, even if it was induced by fraud, no crime of violence was committed. The opinions of the majority in Fraser were quite clear and there was nothing to assist the reclaimer's argument in Hussain v. Houston supra, properly understood. The view contended for by the board was consistent with R. v. C.I.C.B. ex parte Piercey, 14 April 1997 unreported, a decision of McCullough J. in the Queen's Bench Division.

We have set out above the history of attempts to define a crime of violence and we have narrated the arguments for the parties in some detail, but, in our view, this case can be disposed of quite shortly. It seems to us quite clear that the proper approach must be that described by Lawton L.J. in ex parte Webb supra. The board have to consider the nature of the crime which has been committed and decide whether it is, in all the circumstances, a crime of violence, treating those words in their ordinary sense in the English language. What this court has to consider is whether the board erred in their approach to the question, and in doing so this court also must treat the words in their ordinary sense. The reclaimer's original contention to the board was that she had suffered from the crime of bigamy, but bigamy is plainly not a crime of violence. It is constituted by going through a marriage ceremony when one of the parties is not free to marry and does not even depend upon the occurrence of sexual intercourse. The decision in Fraser, to which we shall turn in more detail in a moment, plainly excludes both rape and indecent assault as possible crimes in a case in which consent to sexual conduct is obtained by fraud. This court would not be entitled to review a decision of the High Court of Justiciary or pronounce upon a matter of criminal law even if it were minded to do so: but in any event the decision in Fraser has stood for a very long time unquestioned. The only crimes, therefore, which may relevantly be considered in the present case are the crime of obtaining sexual intercourse by fraud, a charge which was held relevant in Fraser, and the offence under the Sexual Offences (Scotland) Act, which may be regarded as a statutory equivalent of the charge held relevant in Fraser.

Fraser, as is well-known, was a case in which a pannel was accused of obtaining sexual intercourse with a woman by pretending to be her husband. The indictment charged, alternatively, rape, indecent assault, and obtaining sexual intercourse by the pretence. The relevancy of the indictment was objected to and the charges of both rape and indecent assault were held irrelevant. The indictment was, however, allowed to proceed on the charge of obtaining sexual intercourse by impersonating the woman's husband. The case was decided by a majority of four judges to three, the minority being prepared to allow the charge of rape to proceed. The essence of the view of the majority can be found in the opinion of Lord Cockburn. Firstly, at p. 309, Lord Cockburn said:

Later, Lord Cockburn said, at p. 312:

In our view there is nothing in the way in which the court in Fraser dealt with the charge which was held to be relevant to suggest that the charge should be considered as amounting to or as similar to the crime of rape. There is no suggestion, even, that the charge should be seen as involving some kind of supposed or deemed use of force or even something amounting to assault, because of absence of consent. The crime committed is simply one of fraud. Since there is nothing in the authorities to require any different view, the board were, in our opinion, quite entitled to consider the particular circumstances of this case and to come to the conclusion that no crime of violence had been committed. In all the circumstances, therefore, we agree with the decision of the Lord Ordinary and the reclaiming motion must be refused.