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Cite as: 1999 SCLR 1068, [1999] ScotCS 146

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OUTER HOUSE, COURT OF SESSION

P13/149/99

OPINION OF LORD PENROSE

in the Petition of

MISS X

Petitioner;

for

Judicial Review of a decision of Criminal Injuries Compensation Board re time-barred application

________________

Petitioner; Sutherland, Erskine Macaskill

Respondent; Smith, R Henderson

11 June 1999

The petitioner seeks review of a decision of the Criminal Injuries Compensation Board refusing to waive in her case the three year time limit on applications under the Criminal Injuries Compensation Scheme 1990. The decision, which was taken by the Chairman of the Board, and the reasons for it were set out in a letter dated 19 October, 1995 as follows:

"Under Paragraph 4 of the 1990 Scheme application must be made within 3 years of the incident except that the Board may in exceptional cases waive this requirement. I have given careful consideration to the circumstances of your case but have found no reason to regard them as exceptional. Consequently, I regret that I am unable to allow your application to be accepted."

The decision is challenged as unreasonable. In addition it is contended that the letter failed to give proper and adequate reasons for the decision.

The first order in this process was made on 19 March, 1999, some three and a half years after intimation of the Chairman's decision. At the beginning of the first hearing of the petition on 28 May, 1999, counsel for the Board withdrew a plea of mora taciturnity and delay. The petition provided no insight into the reasons for delay. However it had been ascertained that the petitioner had encountered considerable difficulties in obtaining legal aid. There had been a threat of judicial review of certain decisions reached by the Scottish Legal Aid Board before finally legal aid was granted. In these wholly exceptional circumstances, the respondent Board concluded that it would be inappropriate to press what would otherwise have been an argument with real prospects of success. In the light of this concession by the Board the argument proceeded without further reference to the timing of the petition.

The petitioner was born on 29 October, 1966. Her claim for compensation was based on allegations of sexual abuse by one M. over a period of years from about the time she was eight years old. M. was at the time a mature adult. He was uncle of a friend of the petitioner who also suffered sexual abuse at his hands. Information from the police indicated that he had been convicted of indecent assault of the friend when she was eight years of age. There was some inconsistency in the information which the petitioner provided about the period of time involved in the abuse of which she complained. But it was either six or eight years. On any view her complaint was of sexual abuse over a substantial period. The complaint was of very serious criminal conduct extending from touching her private parts to repeated incidents of full intercourse, anal penetration, and forced oral penetration. The petitioner stated in her application that she first disclosed any part of her history to a psychologist and her key worker on 7 January, 1993. Even then it took time for her to be able to disclose the full extent of the abuse she had suffered. She was advised by her key worker, in 1993, to report the allegations to the police. But she stated that she felt unable to do so because (a) she felt unable to go through all of the details of the abuse again, especially with a stranger, and (b) she was scared of the repercussions. The allegations were reported to the police on 22 August, 1994.

On the face of it, the petitioner's application was clearly out of time unless the requirement of paragraph 4 of the 1990 scheme could be waived. The complaint was not made until the petitioner was twenty-six years of age, and the application was made when she was twenty-eight. The Board's guidance notes on the application of time limits in child abuse cases indicate that:

".. the Board has always adopted a sympathetic attitude towards late claims made on behalf of children, or by children themselves when made within a reasonable time of reaching full age."

It is clear that, however flexibly the Board might apply a test of reasonable time after reaching full age, the petitioner's application would not meet that requirement. The basis on which it was contended that there were exceptional circumstances in this case was that the petitioner had suffered and continued to suffer from serious psychiatric problems related to the abuse complained of.

The petitioner first attended for out-patient psychiatric treatment on 21 September, 1979, a month before her thirteenth birthday, and while the alleged abuse was still current. She had a history of in-patient and out-patient treatment there and at hospital. As at September, 1995, her record of in-patient care showed an initial period of treatment from 27 October, 1980 until 27 March, 1981, and then a succession of relatively short-stay admissions in September, 1985; March, 1987; April and May, 1988; June, 1988; July, 1988; August, 1988; January, 1989, February, 1989, July, 1989; and September and October, 1994. At the date of her application she was a psychiatric day patient. Her doctor's report to the Board dated 4 September, 1995 dealt with the Board's questions as follows:

"3. Please give details of any physical injuries, and any recognised psychological condition resulting from the incident.

A: Physical injuries not known to me. Severe psychological symptoms appear to have resulted from her experiences of sexual abuse including depression, self-injurious behaviour, alcohol abuse, anxiety and low self-esteem.

4. Do you expect the applicant to make a full recovery? If not, please give details of any likely continuing disability or residual scarring.

A: No. Some degree of psychological scarring will remain although she has benefited considerably from day attendance.

5. How long did the main effects of the injury last?

A: Current."

The petitioner had a record of minor offending consistent with a history of alcohol abuse.

The documents produced to the Board also included a police report of the complaint, and a police statement taken from the petitioner containing a detailed account of the allegations made against M. Proceedings were not taken because of the lack of corroborative evidence.

For the petitioner, Mr Sutherland submitted that it appeared from the documents that the petitioner had had a history of persistent psychiatric problems from childhood. They appeared to have been relieved to some extent when she was able to speak for the first time about her history of abuse to her key worker. It was unreasonable for the Board to have refused to waive the time limit in the circumstances. The petitioner had been referred for psychiatric treatment as a child, and had been an in-patient in the year following first referral. She had continued to receive treatment into her adult years. There was a clear prima facie case of incapacity to make an application to the Board earlier than she did. Had the Board followed its own published guidance, the application would have been accepted. Paragraph 23 of the Board's Guide to the 1990 scheme stated that the Board would take a more sympathetic view where delay to report an incident to the police was clearly attributable to youth or to some other physical or mental incapacity which rendered it difficult or impossible for the victim to appreciate what to do. While that was directly applicable to reporting complaints to the police, it was a broad indication of what might be considered to be exceptional circumstances in general, or what one might expect the Board to have in mind when considering whether the circumstances of a case such as the petitioner's were exceptional. It would excuse the petitioner's delay in making a report to the police, and was a pointer to sympathetic treatment of the subsequent delay in making the application. Paragraphs 42 to 44 of the Guide gave further support to this approach. The Board stated that it would give sympathetic consideration to late applications from victims whose ability to help themselves was impaired. The general tenor of the notes on child abuse cases was to the same effect. There were similar indications of the Board's general approach in paragraphs 3.4, 3.6 and 3.7 of the Board's thirtieth report to Parliament. Mr Sutherland referred to two cases as illustrations of the application of the test of exceptional circumstances: R. v Criminal Injuries Compensation Board, ex p. A [1992] C.O.D. 379, and R. v Criminal Injuries Compensation Board, ex p. S [1995] 7 Admin. L.R. 693. These illustrated the treatment by the Board of cases involving a degree of mental reaction to sexual offences. But this was a case of full-blown psychiatric illness. The history of that illness was exceptional. It was analogous to the examples in the Guide of conditions which made it difficult for the applicant to decide what to do. It was plainly unreasonable for the Board to have refused to accept the petitioner's application in the circumstances. Mr Sutherland's secondary submission was that, given the circumstances, the reasons expressed for refusal of the application were inadequate. He accepted that there was no express requirement for the Board to give reasons, in contrast to the requirement for reasons found in paragraph 22 of the 1990 Scheme in relation to determining applications. But there was such a requirement at common law: R. v Civil Service Appeal Board ex p. Cunningham [1991] 4 All E.R. 310. The Board acted in a quasi-judicial capacity. The scheme provided for compensation in circumstances in which the victim would have a justiciable civil claim which he or she would be unlikely to be able to pursue against the offender. The issues were similar. And the three year time limit was analogous to the statutory limitation period: in R. v Criminal Injuries Compensation Board, ex p. A the Board referred to the period as a "period of limitation". The Board's discretion to waive the time limit was broader than the court's. But there was a close parallel between the two processes. Where reasons are required the proper test is that set out in Wordie Property Co. Ltd.

For the respondent, Mr Smith contended that there was no duty to give reasons. The thirtieth report of the Board gave an indication of the scale of the problem for the Board. In the year to 31 March, 1994 3,704 out of time applications were received. The vast majority were allowed to proceed. But the scale showed why the decision not to waive the time limit had to be final. The Chairman was always the person who decided that there should not be a waiver of the time limit. He was always prepared to give a statement of reasons where that was requested. The decided cases demonstrated that. In the present case there was no request for a fuller statement of reasons. The 1990 scheme did not require reasons for refusal. No such requirement could be implied given the juxtaposition of a clear requirement for a statement of reasons where that was intended. There was no general duty to give reasons as a matter of law. The existence of such a duty depended on circumstances. The 1990 scheme was not a statutory scheme. It was essentially administrative in character, to provide a means of deciding whether an ex gratia payment should be made from public funds. It was an error to consider applications in terms of a "right" or "entitlement". There was a judicial component in the operation of the scheme, at least by analogy, since the Board required to assess damages on common law principles. But that did not lead to a conclusion that the Board exercised quasi-judicial functions generally. There was not a decision between competing parties. The Board instructed a contradictor as amicus curiae. But that did not affect the position. The proper view was that set out by Lord Prosser in Lawrie v Commission for Local Authority Accounts 1994 S.L.T. 1184. In Allison v Criminal Injuries Compensation Board an unreported decision of Lord Kingarth, 24 March, 1998, it was properly conceded that there was no obligation to give reasons for refusal to waive the time limit in paragraph 4 of the scheme. In R. v Criminal Injuries Compensation Board, ex p. Dickenson, an unreported decision of Schiemann L.J. of 22 February, 1995, it was stated that there was no invariable requirement to give reasons with the initial decision to refuse to waive the time limit. The case also demonstrated that psychological disturbance was not of itself an exceptional circumstance. If it were correct that there was no duty to give reasons, then the petitioner had not made out a case of Wednesbury unreasonableness. She was twenty-eight at the date of the application. Ten years had passed since her majority. Two years passed between disclosure to her key worker and the application. Her application was in each respect well outwith the time limits for favourable consideration indicated in the guidance. Investigation would be difficult. The police report disclosed that the suggested corroborating witness had forgotten all that may have happened. The alleged abuser would now be in his late seventies. The second reason for unwillingness to proceed was wholly unspecific. The medical report was less than positive in attributing the petitioner's mental condition to the alleged abuse. The discussion of the petitioner's symptoms did not support the statement in the application form that the petitioner's maturation processes had been slowed down. R. v Criminal Injuries Compensation Board, ex p. Wilson, an unreported decision of Popplewell J dated 5 February, 1991, demonstrated the stringent test the petitioner had to satisfy. There was a policy of discouraging stale applications. Psychological disturbance could not of itself make a case exceptional. The petition should be refused.

In reply, Mr Sutherland pointed out that in Dickenson the reason that the psychological factor was not thought relevant was that it had not been before the Board. In addition he submitted that R. v Criminal Injuries Compensation Board, ex p. P. [1995] 1 WLR 845 supported the view that the Board's functions were quasi-judicial in character.

In my opinion there can be no absolute duty to give reasons for refusal of a waiver of the time limit in every case, whatever the appropriate classification of the Board's function as administrative or quasi-judicial. Paragraph 43 of the Board's Guide sets out clearly that a claim that the applicant was unaware of the scheme's existence or of its provisions would be unlikely to be regarded as an acceptable reason for failure to make application timeously. An application which gave ignorance of the scheme or of the time limit as the sole reason for seeking waiver would fall squarely into a class in which the reason for refusing waiver was so self-evident from the terms of the application read in the light of the Guide that it would be redundant to express it. Leaving such cases aside, the question appears to me to be generally the same as that posed by Lord Prosser in Lawrie at page 1191. Was the Board in the present case under a basic duty, as a matter of fairness and natural justice, to state reasons for its decision, according to the criteria adopted by the court in the Civil Service Appeal Board case, having regard to the character of the Board as a decision making body, the nature of the decision it had to make in respect of waiver, and the framework in which the Board operates?

"The character of the decision making body" test in the Civil Service Appeal Board case was resolved by the finding that the Board was a fully judicial body, in no way administrative or even quasi-judicial: Lord Donaldson M.R. at page 318. In my opinion the Board cannot properly be characterised as a fully judicial body in that sense. The question is narrower, as Lord Macfadyen said in Cameron. The 1990 scheme was essentially a scheme for regulating ex gratia payments to the victims of certain forms of criminal conduct in which there was no proper contradictor other than the Board itself, representing the public interest. However, I agree with Lord Macfadyen that the scheme contains a substantial judicial component. There are criteria for determining the applicant's qualification for benefit in the definition of the scope of the scheme: paragraph 4. These have the characteristics of ordinary justiciable issues. The provisions for disqualification in paragraph 6, are of the same character. Lord Macfadyen drew attention to the provisions for determining compensation, as a surrogatum for the common law damages to which the victim would have been entitled from a wrongdoer. The Board's function under the 1990 scheme was to determine whether the applicant fell within the category of persons for whose benefit the scheme was established, and, if so, what level of compensation was to be paid. The victim did not have a legal right to compensation. But the scheme conferred a right to apply and to have the application disposed of according to the principles set out. The Board had no discretion to withhold or modify the compensation found payable on a proper application of the principles of the scheme. Nor did Government. The scheme provided that money would be provided through a grant-in-aid for payment of compensation awarded in accordance with the principles set out in the scheme: paragraph 2. Given the factual issues which the Board had to determine, and requirement to apply the prescribed principles in the light of the facts found, I consider that the Board's functions are properly classified as quasi-judicial.

The Board was required to operate within the framework prescribed by the scheme. The scheme was not statutory. But that was the position in the Civil Service Appeal Board case and is clearly not determinative of this question. The framework is not dissimilar to that of a court or tribunal exercising obvious judicial functions. The appointment of an amicus curiae to ensure a contradictor equiparates the Board's procedure at hearing to that of many tribunals. In that respect the operations of the Board have a more obvious adversarial character than many of the discretionary functions of the court itself in relation to trusts, companies and other similar areas of jurisdiction. The fact that the procedures are not truly inter partes is not, in my opinion, significant in the circumstances.

If these observations are valid, the remaining question is whether the nature of the decision the Board had to make about waiver took that aspect of the function out of the scope of the Board's quasi-judicial function. In my opinion it did not. The question whether an applicant should be relieved of the consequences of delay beyond the time limits prescribed by the scheme must turn on the Board's determination of issues of fact, and the application of proper criteria in the exercise of its discretion under the scheme.

It is clear from the practice of the Board that it has always acknowledged a duty to have reasons for a decision on waiver, and a willingness to provide a statement of those reasons on request. The narrative of the procedural history of the application in Petition Allison demonstrates the generosity with which the Board entertained successive applications for explanation of its decisions in that case. Had the present petitioner sought a statement of reasons there might well have been a legitimate expectation that the request would have been complied with. However, if there was a duty to give reasons it would have existed at the point at which the decision was issued. It would not have been dependent on anything done or omitted by the applicant after the decision had been reached. There are provisions in the rules of certain statutory tribunals which provide for reasons to be given "if asked". Such a provision could be written into a criminal injuries compensation scheme. But in the absence of any requirement of that kind it seems to me to be impossible to imply the limitation of the applicant's rights which would flow from restricting the Board's obligation to give reasons where that was otherwise required.

In the absence of an absolute duty to state reasons, the question becomes one of circumstances. There were a number of factors which might have influenced the decision in this case. Mr Smith referred to some of these. The petitioner was ten years beyond her eighteenth birthday at the date of the application. The length of the delay may have been a factor. Two years had passed between disclosure of her complaint to her key worker and the application. Again the application was delayed by a material period. Against that, there was medical evidence. Mr Smith said that the medical report was less than positive in attributing the petitioner's mental condition to the alleged abuse. It might be therefore that the weight to be given to the medical evidence was a factor. Her discussion of the petitioner's symptoms did not, in his submission, support the statement in the application form that the petitioner's maturation processes had been slowed down. The unreliability of that part of the application form might have been a factor. Mr Smith further submitted that investigation would be difficult because of the attitude of the suggested corroborating witness who claimed to have forgotten all that may have happened. That may have been another factor. Again in his submission it followed from R. v Criminal Injuries Compensation Board, ex p. Wilson that psychological disturbance could not of itself make a case exceptional. That also may have been a factor.

It is, in my view, apparent from the range of factors identified by Mr Smith that this was a case in which there should have been a statement in outline of the Board's reasons for refusing waiver, "sufficient to show to what they were directing their mind and thereby showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful.": Civil Service Appeal Board case at page 319. If Mr Smith's final submission reflected the basis of the Chairman's decision, the petitioner might indeed have cause for complaint. Mr Sutherland was, in my opinion, clearly correct in his submission that in Dickenson the reason that the psychological factor was not thought relevant was that it had not been before the Board. At page 10 of the transcript of his decision, Schiemann L.J. stated that the psychiatric evidence which had been placed before him was not admissible because it had not been before the decision taker. He also expressed the view that in the circumstances of that case the material available would not have persuaded the Board on the point in issue, namely whether the applicant had participated voluntarily in the conduct of which he complained. Nothing in that case has a bearing on the issue raised by the application in this case, which might be expressed as being whether the petitioner suffered such mental incapacity throughout the period of delay that her inaction fell to be excused. If the decision taker had accepted that the effect of the medical evidence was that the applicant was disabled by mental illness from making the application until she overcame her inability to formulate her complaint but nevertheless held that the circumstances were not exceptional he might have committed an error of the kind illustrated in ex p S. Given the range of possible reasons for refusal, and the possibility that one or more of them might have involved misdirection, this was, in my opinion, a case in which some statement of reasons was required. Only with the benefit of some statement of reasons could one form a view on the legality of the decision. In the circumstances of this case a bald statement that the circumstances were not exceptional is necessarily defective. I agree with the observations of Bristow J in Elmbridge Borough Council at page 547 that:

"If the reasons are so expressed as to be unintelligible, the parties cannot tell whether the decision has been reached according to law. The evil is the same as if no reasons have been given when the statute requires that they should be given, and the defect in the expression of the reasons is as much an error of law as would be a failure to give them".

I also agree with him that the same principles apply where there is no statutory requirement but reasons are given in fact. And it appears to me to follow that the same principles will apply wherever the circumstances are such that a statement of reasons is required as a matter of fairness and natural justice.

It does not follow that the actual decision was unreasonable. It appears to me that there may have been wholly unexceptionable reasons for the decision reached. It would be inappropriate to express any concluded decision on the major proposition for which Mr Sutherland contended. He did not demonstrate that the decision had to be flawed on an analysis of the material before the Board, nor, as Mr Smith put it, that there was an irresistible inference from that material that the decision was affected by Wednesbury unreasonableness.

I shall sustain the second plea-in-law for the petitioner and reduce the decision complained of accordingly. That course will enable the Board to issue a fresh decision on the application with a statement of reasons.