Scottish Court of Session Decisions

H.W. v. Criminal Injuries Compensation Appeal Panel [2002] ScotCS 138 (15th May, 2002)

OUTER HOUSE, COURT OF SESSION
P155/02	OPINION OF LORD MACFADYEN in the Petition of H W (AP) Petitioner; against THE CRIMINAL INJURIES COMPENSATION APPEAL PANEL Respondents: for Judicial Review of a decision of the Criminal Injuries Compensation Appeal Panel ________________

 

 

Petitioner: Sutherland, Drummond Miller, W.S.,

Respondents: D B Ross, Office of the Solicitor to the Advocate General

15 May 2002

Introduction

1. The petitioner seeks judicial review of a decision of the respondents, the Criminal Injuries Compensation Appeal Panel, which was made on 12 December 2000 and recorded in a letter dated 20 April 2001, and for which reasons were set out in a letter dated 12 July 2001. The decision was that the petitioner's application for compensation under the Criminal Injuries Compensation Scheme 1990 ("the 1990 Scheme") was disallowed. The application was made on 7 August 1995 in respect of crimes of violence committed against the petitioner during the period from 1985 to 1987 by her former husband ("WW"), from whom she separated in 1988 and was divorced on 31 January 1992.
2. The petitioner avers that she married WW in 1963. There were five children of the marriage. The petitioner avers that throughout the marriage she was repeatedly and severely physically, and latterly sexually, abused by WW. One consequence of a series of assaults committed by WW between 1985 and 1987, according to the petitioner, was that she suffered a fractured skull, and brain damage referred to as "punch drunk syndrome". That diagnosis, however, was not made until some considerable time after the petitioner left WW. The petitioner avers that she fled the matrimonial home with the children in 1988. She went to the Social Work Department of the local authority, who referred her to the police. WW had also been sexually abusing one of his daughters, D, and the focus of social work and police attention, it is averred, was initially on that matter, which resulted in WW being prosecuted and convicted of sexual abuse of D. A claim for criminal injuries compensation was made on D's behalf, and compensation was awarded.
3. The petitioner's application under the 1990 Scheme was disallowed on 18 March 1997. An appeal was heard on 12 December 2000, and was disallowed. The decision was recorded in a letter from the Criminal Injuries Compensation Authority to the petitioner's solicitors dated 20 April 2001 (No. 6/2 of process) in the following terms:

"Disallowed - not satisfied ever reported to police and in any event alleged offender not prosecuted (Paragraphs 6(a) and 8(a))."

Full written reasons for the decision were given in a document attached to a letter from the respondents dated 12 July 2001 (No. 6/3 of process).

4. The petitioner now seeks reduction of the decision made on 12 December 2000. She does so on the ground that the respondents erred in law and acted unreasonably in making the decision.

The 1990 Scheme

5. The 1990 Scheme provided for ex gratia payments of compensation for personal injury directly attributable to a crime of violence (paragraph 4(a)). Paragraph 6 provided inter alia that:

	"The [Criminal Injuries Compensation] Board may withhold or reduce compensation if they consider that -
	(a)	the applicant has not taken, without delay, all reasonable steps to inform the police, or any other authority considered by the Board to be appropriate for the purpose, of the circumstances of the injury and to co-operate with the police or other authority in bringing the offender to justice".
Paragraph 8 provided inter alia that:
	"Where the victim and any person responsible for the injuries which are the subject of the application ... were living in the same household at the time of the injuries as members of the same family, compensation will be paid only where -
	(a)	the person responsible has been prosecuted in connection with the offence, except where the Board consider that there are practical, technical or other good reasons why the prosecution has not been brought".

The jurisdiction conferred on the Board in these matters was, at the time of the decision which the petitioner seeks to bring under review, exercised by the respondents.

The Reasons

6. The written statement of reasons for the decision made on 12 December 2000 was provided by the respondents on 12 July 2001 (in No. 6/3 of process). It is convenient to set it out in full. For ease of later cross-reference I shall insert paragraph numbers, which do not appear in the original document. The statement was in the following terms:

	"(1)	The applicant had not made a claim for compensation for the alleged assaults on her by her husband until 1995 although the assaults had taken place, it was said, over a long period prior to 1987 or 1988.
	(2)	In 1987 or 1988 the applicant had reported abuse by her husband, committed on their daughter [D]. There was no doubt that she told the police about the abuse of her daughter (who later received an award from the Board) but she could not remember whether she had told the police about any violence to herself. No prosecution was ever considered or brought against the husband for the assaults complained of by the applicant.
	(3)	In addition to the applicant's oral evidence the Panel had before it written statements from the applicant. At document 2(i) in the Panel's bundle, the applicant said that she could not remember if she told the police about her husband's violence. Thereafter at document 2(j) the applicant stated 'none of the incidents of violence were reported to the police as I was so terrified'. The applicant's oral evidence at the hearing was at one point to the effect that she 'had told the police everything which happened to herself and [D]'. Later in her evidence she said that she had not reported her husband to the police because 'he said that he'd kill the kids'; and further 'that she never thought of going to the police'. We did not regard the applicant's evidence about reporting the assaults on her as reliable and would not have been prepared to accept it unless it was supported from another source.
	(4)	A social worker, Ms McLeod, who assisted the family at the time of the disclosure of the abuse of [D], and who was closely involved with the family and the applicant in particular at the material time, said that she was not aware of any report to the police. The concern at the time, she said, was clearly for [D].
	(5)	The police officer who attended the hearing told the applicant at the hearing that he had no recollection of her making a complaint of assault and due to the lapse of time before the application to the Board was made, all the police records had been destroyed.
	(6)	The Panel did not regard the applicant's evidence that she had reported the assaults on her as reliable in the absence of any support for it and rejected it.
	(7)	The Panel concluded that no report had been made.
	(8)	The Panel in terms of paragraph 6(a) of the Scheme may withhold compensation where the police have not been informed by the applicant, without delay, of the circumstances of the injury giving rise to the claim. The Panel concluded that this was a case where a report could have been made to the police at the time when the complaint of abuse of [D] was made. The family had left the former home and were in a place of safety. There were no circumstances sufficiently excusing non-reporting which persuaded the Panel that their discretion under paragraph 6(a) should be exercised other than by withholding an award if one were otherwise appropriate.
	(9)	It was, the Panel determined, inappropriate in any event for an award to be made. This was a case to which the provisions of paragraph 8 of the 1990 Scheme applied. The applicant and her husband, the alleged assailant, were living in the same household as members of the same family at the time of the assaults. Under that paragraph, particularly paragraph 8(a), and subject to the proviso in it, no award can be made for assaults of the nature complained of unless the offender is prosecuted. The applicant's husband was not here prosecuted. The Panel determined that even if the applicant had made a report to the police there was no evidence before the Panel which would allow them to conclude as they were required to do under paragraph 8(a) of the Scheme that there were practicable [sic; sc. practical], technical or other good reasons why a prosecution had not been brought.
	(10)	The claim was accordingly disallowed under paragraphs 6(a) and 8(a) of the Scheme."

The Issues

7. Mr Sutherland, who appeared for the petitioner, advanced a number of grounds on which he submitted that the respondents' decision of 12 December 2000 should be set aside. The submissions related both to the decision that compensation should be withheld under paragraph 6(a), and to the decision that by virtue of the application of paragraph 8(a) compensation could not be awarded. I shall deal with the submissions relating to paragraph 6(a) and those relating to paragraph 8(a) in turn. They had in common that they involved either the contention that the respondents had misdirected themselves as to the meaning and scope of the relevant provisions of the Scheme, or the contention that the respondents had reached a conclusion which no reasonable tribunal properly directing itself would have reached in the circumstances. Those submissions were advanced without any specific reference to authority. Mr Ross, who appeared for the respondents, reminded me that in judicial review it was not open to me to interfere with the respondents' decision on the mere ground that, had the decision been for me to make, I would have reached a different conclusion. It did not appear to me, however, that there was any real dispute between counsel as to the legal principles which fall to be applied in determining the issues raised in the petition. They differed rather in their contentions as to how those principles fall to be applied to the particular circumstances of this case.

Paragraph 6(a)

(a) Social Work Department as "appropriate authority"

8. The first ground of challenge to the respondents' decision set out in statement 8 of the petition is in the following terms:

"The respondent has erred in the proper application of paragraph 6(a) of the 1990 Scheme in that there was clear unchallenged evidence from the petitioner and the social worker that the abuse of the petitioner had been reported to the social work department. The social work department was an appropriate authority for the petitioner to report the abuse of herself to."

Mr Sutherland referred to notes of the proceedings before the respondents, which had been taken by the petitioner's solicitor (No. 6/1 of process). The accuracy of those notes was not disputed by the respondents. It is evident from them, as well as from the witness statements contained in No. 6/4 of process, that it is correct that the petitioner and the social worker, Claire McLeod ("CM"), gave unchallenged evidence that the petitioner had given an account of WW's violence to her to CM. Mr Sutherland submitted that, that being so, it was incumbent on the respondents, when they held that the petitioner had not reported WW's violence to the police, to go on to consider whether the fact that she had reported it to CM satisfied the alternative requirement in paragraph 6(a) of informing "any other authority considered by the Board to be appropriate". They had not done so. The reasons (paragraph (8)) were couched in terms that indicated that the respondents had confined themselves to considering whether a report had been made to the police and, once they had held that no such report had been made, whether there was a sufficient excuse for non-reporting. Mr Sutherland referred to a document "A Guide to the Criminal Injuries Compensation Scheme" ("the Guide") issued in 1990 by the Criminal Injuries Compensation Board. Paragraph 24 of the Guide was in the following terms:

"Informing someone else. It is the police to whom crimes of violence must be reported, and reports made to employers, trade union officials, social workers or others will not generally be regarded by the Board as sufficient."

The paragraph continues by mentioning possible exceptions where injuries are suffered in mental hospitals or prisons, and the fact that, for a child, his or her parents may be the "appropriate authority". Mr Sutherland's point was that the sentence quoted, by stating that a report to a social worker would not "generally" be sufficient, recognised that there might be circumstances in which such a report would be sufficient for the purpose of paragraph 6(a). Such circumstances existed in the present case.

9. Mr Ross submitted that, although there had been evidence that the petitioner had told CM about WW's violence towards her, there had been no submission to the respondents that that had amounted in the circumstances to informing an appropriate authority. He relied on the informal notes of the proceedings before the respondents (No. 6/1 of process) which indicate that the thrust of the submissions made to the respondents by counsel who then appeared on behalf of the petitioner had been to the effect that WW's violence had been reported to the police, or alternatively, if the respondents held otherwise, that there were good reasons (in that (a) the petitioner was not then in a fit state to make such a report and (b) the main concern at the time had been for the children) for her not having reported the violence to the police. The only reference to what the petitioner told CM was to be found in a submission that the petitioner "would have given the same statement that she had given to the Social Worker to the police". The contention that what the petitioner told CM amounted to informing an appropriate authority was not put before the respondents, and therefore did not require to be addressed by them. In the alternative, Mr Ross submitted that the respondents had held that in the circumstances of the case the police were the only appropriate authority. In the second sentence of paragraph (8) of their reasons, the respondents stated:

"The Panel concluded that this was a case where a report could have been made to the police at the time when the complaint of abuse of [D] was made".

The examples given in paragraph 24 of the Guide relating to prisons and mental hospitals were cases where a report to the police would be difficult to make. The respondents were, however, entitled to hold that where a report could be made to the police, no other authority was appropriate. That was what the sentence quoted above amounted to.

10. I do not consider that Mr Ross's alternative submission can be accepted. It may well be that the respondents, if they had considered whether the report to CM could be regarded as the giving of information to an appropriate authority, would have held that it could not, and would have so held because of their view that a report could have been made to the police. It is, however, in my view reading too much into the sentence on which Mr Ross relied to regard it as disclosing that the respondents did go through that process of reasoning. On the contrary, it seems to me to be clear from the terms of paragraph (8) of their reasons that the respondents, having found in fact that no report had been made to the police, confined themselves to considering how in these circumstances they should exercise the discretion conferred on them by paragraph 6(a).
11. It seems to me to be clear that, if there had been a live issue before the respondents as to whether what the petitioner told CM amounted to the giving of information to an appropriate authority, it would have amounted to a misdirection on the respondents' part for them to have failed to address that issue and confined their attention to the consequences of the absence of a report to the police. The question which requires to be determined, it seems to me, is whether the fact that there was before the respondents unchallenged evidence that the petitioner had told CM about WW's violence is per se sufficient to have required the respondents to address the "appropriate authority" issue. In my view it was not. It seems to me that to make a case that a report to someone other than the police ought to be regarded as the giving of information to an appropriate authority, more is needed than the mere fact that the other person had been told of the crimes of violence. Circumstances making that other person an appropriate authority also require to be invoked. It seems to me to be clear that, at the time when the petitioner's application was before the respondents, no case was put forward to the effect that the respondents ought to regard her reporting to CM as the giving of information to an appropriate authority. In those circumstances the respondents were in my view entitled to confine their attention to the cases actually advanced, namely that there was reporting to the police, or, if there was not, that there was good reason for failure to report to the police. I am therefore of opinion that, in the circumstances, the fact that the respondents did not address whether CM was an appropriate authority did not amount to a misdirection on their part as to the proper scope of paragraph 6(a).
2. The discretion to make a reduced award
3. The second ground of challenge to the respondents' decision set out in statement 8 of the petition is in the following terms:

"The respondent failed to give any consideration as to whether it would be appropriate to make a reduced award if they were not satisfied that the matters had been reported to the police. The respondent has failed to properly apply the terms of paragraph 6(a) of the 1990 Scheme".

Mr Sutherland submitted that, if the respondents considered that the applicant had not done what was required of her by subparagraph (a) of paragraph 6, there was conferred on them a discretion as to what course they should take. One was to withhold compensation. The other was to reduce compensation. Both required to be considered. The terms of paragraph (8) of the respondents' reasons, Mr Sutherland submitted, disclosed that they had not considered the possibility of reducing, rather than withholding, compensation. That amounted to a misdirection on the part of the respondents.

4. Mr Ross submitted that the discretion conferred on the respondents by paragraph 6(a) was wider than Mr Sutherland had suggested. If the subparagraph (a) condition was not satisfied, the courses of action open to the respondents were (i) to withhold compensation altogether, (ii) to reduce compensation, and also (iii) nevertheless to make a full award. That third option was implicit in the word "may" which preceded the options of withholding and reduction. The respondents were not obliged to do one or other of those two things. They retained a discretion to make a full award. Viewing the matter in that way, it was, Mr Ross submitted, clear that the respondents had considered and rejected both the making of an award and the reduction of an award. That was clear from the language of the paragraph (8) of the reasons: "There were no circumstances sufficiently excusing non-reporting which persuaded the Panel that their discretion under paragraph 6(a) should be exercised other than by withholding an award if one was otherwise appropriate." There had accordingly been no misdirection.
5. I do not consider that it is necessary for me to decide whether the making of a full award is properly to be regarded as falling within the discretion conferred on the respondents by paragraph 6 in the event of their holding that the condition specified in subparagraph (a) has been fulfilled. It would, in my view, have amounted to a misdirection on the part of the respondents if, having held that the subparagraph (a) condition was satisfied, they had proceeded to decide to withhold an award without considering the alternative of reducing the award. I do not consider, however, that on a fair reading of their reasons the respondents fell into that error. The last sentence of paragraph (8) of the reasons in my view makes it reasonably clear (i) that the respondents were aware that non-compliance with subparagraph (a) did not necessarily result in withholding of an award; (ii) that they were aware that there was in these circumstances a discretion to be exercised, and (iii) that they took the view that the circumstances did not, however, justify their exercising their discretion in any way other than by withholding the award. I am therefore satisfied that there was no misdirection on the respondents' part in this respect.
6. The reasonableness of the finding that the police were not informed
7. In statement 8 of the petition it is averred that the respondents' decision was unreasonable "in that on a balance of probabilities in the circumstances condescended upon it is extremely unlikely that the police would not have been advised of the whole history of abuse by [WW] against all the members of his family." The respondents' approach to the issue of whether the police were told about WW's assaults on the petitioner is set out in paragraphs (3) to (7) of their reasons. Mr Sutherland submitted that that approach was unreasonable in its concentration on whether there was evidence of other witnesses to support the evidence of the petitioner (which they regarded as unreliable) that she had told the police. The petitioner's evidence might be supported by circumstantial detail, as well as by direct confirmation by another witness. Two points in particular were made. First, the respondents failed to weigh the facts (spoken to in evidence) that the petitioner had at first been charged along with WW in respect of the abuse of D, but that subsequently it was decided that no proceedings should be taken against her. Those circumstances were capable of bearing the inference that the police initially thought that, because the petitioner had been aware of the abuse and had not reported it earlier, she was herself guilty of it art and part; and that the subsequent dropping of the charges followed a fuller understanding on the part of the police of her position, including an appreciation that she had not reported the abuse of D because of fear of WW induced by his violence towards her. Secondly, it was submitted that, given the petitioner's mental and emotional state at the time, it was improbable that she would have been able to organise her thoughts to such an extent as to be able to give the police a narrative of WW's abuse of D (which it was accepted she had done) without at the same time pouring out an account of what WW had done to her as well.
8. In his submissions on this point, Mr Ross reviewed the respondents' analysis of the petitioner's evidence on whether she had reported WW's assaults on her to the police, and submitted that they were entitled to regard her evidence on that point as unreliable. They were therefore entitled to look to other witnesses for confirmation of the version of the petitioner's evidence which her counsel had asked them to accept. Neither of the other witnesses provided such confirmation. The considerations now put forward by Mr Sutherland had not been advanced in submission before the respondents. The issue was whether the conclusion reached by the respondents was reasonable having regard to the evidence before them and the submissions made to them. That issue fell to answered in the affirmative.
9. I do not find the respondents' analysis of the petitioner's evidence about whether she reported WW's violence to the police altogether satisfactory. In particular, it seems to me that in paragraph (3) of their reasons they fail to distinguish between (i) the petitioner's evidence about not telling the police about WW's assaults while she was still living with him and in fear of what he might do to her or to the children if she went to the police, and (ii) her evidence about whether or not she told the police about WW's assaults on her at the time when the abuse of D was reported. By failing to notice that distinction, they create an appearance of greater contradiction in the evidence of the petitioner than was, in my view, truly there. Be that as it may, however, there was a clear discrepancy between the petitioner's evidence (a) that she could not remember if she told the police about her husband's violence to her, and her evidence (b) that she had told the police about everything that had happened to her. That was, in my view, sufficient to entitle the respondents to regard her evidence that she had told the police everything as unreliable unless supported by other evidence. Neither of the other witnesses who gave direct evidence on the point provided such support. If that was all that fell to be taken into account, the rejection of the pursuer's evidence that she had reported the assaults to the police was in my view plainly a course which was open to the respondents. I do not consider that the points made by Mr Sutherland alter that. The fact that the petitioner was originally charged in connection with the abuse of D, but then not proceeded against, may be explicable in the way set out by Mr Sutherland, but there are other possibilities (such as a decision that her responsibility was relatively slight and that it was in the public interest that she should be used as a witness against WW rather than herself prosecuted). The inference that it is unlikely that the petitioner could, while telling the police about the abuse of D, have withheld an account of the assaults on herself is one which I would, if it had been a matter for me, have been inclined to give some weight. The point was not, however, made in counsel's submissions to the respondents. In these circumstances I do not consider that it can be said that the considerations advanced by Mr Sutherland demonstrate an unreasonable approach to the evidence by the respondents, or justify the conclusion that the finding that the petitioner did not report WW's assaults on her to the police was one which no reasonable tribunal could have reached on the evidence before it and in light of the submissions made to it.
10. The effect of abuse on the petitioner's memory
12. The fourth point made in the petition against the respondents' decision in respect of the paragraph 6(a) issue is expressed in this way:

"The respondent has failed to take proper account of the fact that the petitioner's memory had been affected by her abusive experiences."

Mr Ross accepted that there was before the respondents medical evidence that the petitioner suffered from impaired memory. He submitted, however, that that had no relevance to the paragraph 6(a) issue. The fact that the petitioner's memory was impaired did not help to establish that she made a report to the police. Appropriate allowance was made by the respondents, in that they did not treat the discrepancy in the petitioner's evidence as affecting more than her reliability. They took the appropriate course of looking elsewhere for confirmatory evidence that she had told the police, but did not find it. It could not be said that that was unreasonable.

13. In my view this argument for the petitioner is not well founded. The fact that there was good medical reason for her not to be able to remember, at the time of the hearing in 2000, what she told the police in 1988, does not help to establish that she did tell them about the assaults committed on her. The point made in the submissions of counsel before the respondents was a different one, relating to the petitioner's emotional and mental state at the time when the complaint about the abuse of D was being made to the police. That went to whether failure to report the assaults on the petitioner to the police at that stage could be overlooked. The respondents took the view that the circumstances did not justify any course other than the withholding of compensation. I cannot infer that in coming to that conclusion they did not take account of the submissions made to them. It cannot in my view be said that no reasonable tribunal would have failed to regard the petitioner's mental and emotional state at the time as justifying a course other than withholding compensation under paragraph 6(a).

Paragraph 8(a)

14. The contention put forward in the petition in relation to the respondents' decision under paragraph 8(a) is in the following terms:

"The respondent has further erred in its consideration of paragraph 8(a) of the 1990 Scheme. The evidence before the respondent was that the main interest of the authorities at the time had been in respect of the children and not the petitioner. At the outset the petitioner had been treated as a suspect in respect of these matters [sc. the abuse of D]. It was apparent from the evidence before the respondent that her own ability to recollect events was impaired and that at the time her psychological condition was obviously poor. In all the circumstances of the case there was on the balance of probabilities good reason why the police had not brought a prosecution against [WW] for his abuse of the petitioner. The decision of the respondent in this matter is unreasonable."

15. In his submissions Mr Sutherland, as well as making the points set out in the pleadings in the passage quoted above, pointed out that the respondents had approached the paragraph 8(a) issue on the hypothesis (contrary to their finding) that a report had been made to the police. They expressed the view that if such a report had been made there were no circumstances to allow them to conclude that there were practical, technical or other good reasons why a prosecution had not been brought. There was no suggestion, however, that the petitioner had been unco-operative, and that that had been the cause of there being no prosecution. The petitioner should therefore not be penalised under paragraph 8(a).
16. Mr Ross pointed out that paragraph 8(a) did not confer a broad discretion like the one conferred by paragraph 6(a). Paragraph 8(a) set out a condition that required to be satisfied, in a certain category of case, before compensation could be awarded. The circumstances of the petitioner and WW were such as to bring the case within the scope of paragraph 8(a). The condition was not satisfied in the primary way contemplated, because WW had not been prosecuted. The condition could therefore only be satisfied if there were "practical, technical or other good reasons" for the absence of prosecution. The points made in the passage quoted from the petition in paragraph [20] above simply did not address the paragraph 8(a) issue. Concern about one victim did not explain failure to prosecute the perpetrator in respect of crimes committed on another victim. The fact that the petitioner was originally treated as a suspect in relation to the abuse of D afforded no explanation for the non-prosecution of WW for assaults on the petitioner. There was nothing before the respondents to suggest that the petitioner's psychological condition played any part on the non-prosecution of WW.
17. Clearly in this case the requirements of paragraph 8(a) required to be satisfied if the petitioner was to be entitled to compensation. WW was not prosecuted. Paragraph 8(a) could therefore only be satisfied if there was "practical, technical or other good reasons" for that state of affairs. The respondents do not appear to me to have addressed the real issue before them. They have addressed a hypothetical situation by saying that "even if the applicant had made a report to the police there was no evidence ... which would allow [the respondents] to conclude ... that there were [practical], technical or other good reasons why a prosecution had not been brought". The proper approach, it seems to me, would have been to proceed on the basis of the finding in fact that they had made, namely that no complaint had been made to the police. On that basis the answer to the question: "Why was WW not prosecuted?" was obvious, and the consequent question which would have required to be answered was whether the petitioner's failure to report the assaults to the police, or the fact that the social work department did not pass on the petitioner's complaints to the police, could constitute a "practical, technical or other good reason" for non-prosecution. The respondents simply did not address that issue. In these circumstances, the respondents, in my view, misdirected themselves as to the issue to be considered under paragraph 8(a).

Result

18. For the reasons which I have given, I do not consider that there is any ground for setting aside the respondent's decision under paragraph 6(a). Their decision under paragraph 8(a) was, in my view, flawed by misdirection. Since, however, the decision under paragraph 6(a) is by itself sufficient to result in the disallowance of the petitioner's claim, the result which the respondents reached was a sound one, despite my conclusion that part of their reasoning was unsound. In these circumstances I am of opinion that the decision must stand.
19. I shall accordingly repel the petitioner's plea-in-law, sustain the respondents' second plea-in-law, and refuse the petition.