Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 83
P239/13	OPINION OF LORD ARMSTRONG in Petition of AS Petitioner; For Judicial Review of the decision notice of the First Tier Tribunal, Criminal Injuries Compensation, dated 28 February 2011 and the decision on the final award, dated 15 March 2012, to reduce the award in terms of paragraph 13(d) of the Criminal Injuries Compensation Scheme 1996. ________________

Petitioner: Grahame QC; Digby Brown, Edinburgh

Respondent: No appearance

30 May 2013

[1] The petitioner seeks review of two decisions which have the effect of reducing his award of criminal injuries compensation by 40%. By letter, dated 15 April 2013, the Office of the Advocate General advised that, following service of the petition on them, HM Courts and Tribunal Service and the Criminal Injuries Compensation Authority did not intend to lodge answers to the petition or to appear or be represented at the first hearing. Despite service of the petition on them, there was no appearance in process by the individual members who comprised the appeals panel responsible for the decision of 28 February 2011 against which the petitioner's challenge is primarily directed. Accordingly, no respondent or interested party appeared before me.

The facts

[2] The case arises as a result of injuries sustained by the petitioner in the course of an assault on him, on 11 October 1997, in which he was stabbed in the right temple and sustained permanent serious brain damage. On 2 March 1998, during a sitting of the High Court of Justiciary, his assailant pleaded guilty to assault by striking the petitioner on the head with a knife to his severe injury, permanent impairment and to the danger of his life. On 27 January 1999, the petitioner made an application for criminal injuries compensation under the Criminal Injuries Compensation Scheme 1996.

[3] Paragraph 13(d) of the Criminal Injuries Compensation Scheme 1996 provides inter alia as follows:

"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 the application makes it inappropriate that a full award or any award at all be made;..."

[4] By a review decision, dated 22 October 2010, a Criminal Injuries Compensation Authority claims officer determined, after considering the petitioner's application under reference to paragraph 13(d), that on account of the petitioner's conduct his award of compensation should be reduced by 50%.

[5] On 22 November 2010, the petitioner lodged a notice of appeal against the review decision dated 22 October 2010.

[6] On 28 February 2011, following a hearing on that date, the Criminal Injuries Compensation Appeals Panel, now known as the First Tier Tribunal, Criminal Injuries Compensation, ("the Tribunal"), issued a decision notice finding that the petitioner's conduct should be taken into account and a reduction made to his award of compensation of 40%.

[7] On 15 March 2012, the First Tier Tribunal, Criminal Injuries Compensation, issued a final decision notice awarding the petitioner £300,000, that sum being a full award of £500,000 under deduction of 40%. On 1 March 2011, written reasons were requested on the petitioner's behalf. On 28 March 2012, written reasons were again requested. On 21 August 2012, more than 17 months after the original request, written reasons, dated 23 July 2012, which refer erroneously to 28 March 2011 as the date of the hearing, rather than 28 February 2011, were received by the petitioner's solicitors.

[8] At the hearing on 28 February 2011, the Tribunal had before it the following evidence:

(i)            Report by Lord Johnson in HMA v PM (undated but relating to the plea tendered during the High Court sitting commencing 2 March 1998).

(ii)           Form completed by Strathclyde Police, dated 18 March 1999.

(iii)         Letter from procurator fiscal's office, dated 27 September 2000.

(iv)         Oral evidence of KS.

(v)           Handwritten statement of KS dated 16 November 2003.

(vi)         Handwritten statement of TB, dated 26 November 2003.

On the petitioner's behalf, a written skeleton argument was submitted and oral submissions were presented to the Tribunal.

[9] In effect, the Tribunal's decision to reduce the petitioner's award by 40% was based on a finding by it that the unarmed petitioner had challenged his assailant to a "square go" before the assailant produced a knife and stabbed him.

The submissions

[10] The petitioner seeks reduction of that decision and the consequential decision, dated 15 March 2012, on the basis that, by making the decision it did on 28 February 2011, on the basis of the evidence available to it, the Tribunal erred in law, allowed a breach of natural justice, failed to give adequate reasons and acted as no reasonable tribunal should.

[11] First, under reference to the report by Lord Johnston, the Tribunal narrated, at paragraph 11(f) of its written reasons:

"We also paid considerable attention to the brief, but significant comments of Lord Johnston in his sentencing remarks. This was a reliable gauge of what the learned Lord had deemed to be the relevant evidence, after considering all of the evidence and submissions at a criminal case, where the standard of proof is a much stricter and heavier one than the balance of probabilities which we have to consider. Further, his comments would be based upon much more contemporaneous and accurate evidence/statements than we have access to now. In particular he states:

'This led to an argument and in due course a fight between the accused and the complainer which developed into a struggle in the bedroom of the house in which there was the knife in question and which was legitimately owned by the accused in connection with his occupation as a joiner.' "

[12] None of the three members of the Tribunal was familiar with Scots criminal procedure and practice. Their understanding of the position at the time of the tendering of the plea of guilty was wrong. Lord Johnston would not have heard any evidence, nor assessed it in terms of credibility and reliability. The information available to him would have comprised a narrative presented by the Crown and a plea in mitigation on behalf of the accused. He would not have gone about the process of assessing independently the statements or evidence of any witnesses in the case. Any statements available to him would have been police statements lodged as Crown productions. The provision of statements by the Crown at that time was governed by the case of McLeod v HMA (No 2) 1998 JC 67 as was the position prior to the case of Sinclair v HMA 2005 1SC (PC) 28. Further, there is nothing in Lord Johnston's report to indicate that he was informed that the petitioner had suggested a "square go" or that he had instigated or willingly engaged in violence. Further, on behalf of the petitioner at the hearing on 28 February 2011, it was drawn to the attention of the Tribunal that there would have been no evidence before Lord Johnston when the plea was tended. The Tribunal were informed that Lord Johnston would have heard about the circumstances of the incident only from the Crown narrative and the defence plea in mitigation. Notwithstanding that, the Tribunal members, and in particular the chairperson, expressed the view that Scots criminal procedure in 1999 was the same as English criminal procedure at that time. That assertion was contradicted by the solicitor representing the petitioner. Despite that, the Tribunal did not take steps to clarify the position prior to reaching their decision. No opportunity was given to the petitioner to investigate or clarify the differences in procedure insofar as they may have been material.

[13] The Tribunal was in error as regards its understanding of Scots criminal procedure and practice. The Tribunal failed to give reasons for rejecting the submissions made on behalf of the petitioner regarding the differences between Scots and English criminal procedure and practice (Lutton v General Dental Council [2011] CSIH 62, at paragraph 15). The Tribunal allowed a breach of natural justice by failing to allow the petitioner the opportunity to clarify the position by further investigation (Tait v Central Radio Taxis (Tollcross) Ltd. 1989 SC 4). Insofar as Lord Johnston's report makes reference to a fight, in the sense of an attack on the petitioner, the Tribunal ought not to have interpreted his comments as support for the proposition that the petitioner had suggested a "square go". In adopting the approach to Lord Johnston's report which it did, the Tribunal acted as no reasonable tribunal should have done.

[14] Secondly, the Tribunal disregarded relevant evidence available from the form completed by Strathclyde Police. Amongst other questions set out in the form, one at paragraph 2.3 is in the following terms:

"Is there any evidence to suggest that the applicant was in any way to blame for the incident?"

In the form, as completed by the Strathclyde Police, that question is answered in the negative. On behalf of the petitioner, that evidence was drawn to the attention of the Tribunal, both in the skeleton argument and in the oral submission. The Tribunal failed to give any weight to the form completed by Strathclyde Police. The Tribunal makes no reference to it in the written reasons and no reason is given for the rejection by the Tribunal of the submissions made on behalf of the petitioner in that regard. Strathclyde Police had been responsible for investigating the incident and had submitted a report to the procurator fiscal. The Tribunal ought to have given weight to the response by Strathclyde Police to the question posed. The written reasons give no explanation as to why that evidence was disregarded. In that regard the Tribunal acted unreasonably as no tribunal, properly directing itself, would have done (R v Criminal Injuries Compensation Board [2001] PIQR Q2).

[15] Thirdly, at paragraph 11(c), of the written reasons, the Tribunal gave weight to the content of the letter from the procurator fiscal, dated 27 September 2000. And in particular to a passage in the following terms:

"...evidence available indicates that (the incident) originated in a dispute between the claimant and the accused over the way in which the accused had treated the claimant's sister. One witness speaks to the claimant offering the accused a 'square go'..."

The petitioner all along denied that he offered to fight his assailant or to have a "square go". This letter was the only source of evidence suggesting that there ever was an offer of a "square go" and it was therefore of the utmost importance to the consideration by the Tribunal of whether paragraph 13(d) of the Scheme had any application to the petitioner's case. Both in the skeleton argument and in the oral submissions presented on behalf of the petitioner it was argued that to rely on the letter, in circumstances where the original documentation was not available, the witness could not be identified and the evidence could not be challenged, amounted to a breach of natural justice. In the written reasons, the Tribunal noted, at paragraph 4, that it had been presented on behalf of the petitioner that those circumstances amounted to a breach of natural justice. At paragraph 11(c) of the written reasons the Tribunal stated:

"We considered that this, albeit brief summary from the procurator fiscal, was reliable and would have been based on a contemporaneous overview of all of the then available evidence and we give it weight."

In reality, the original case papers were no longer available to the Crown and the terms of the letter were based only on a summary of the evidence in the case. The summary was never produced, its author was never identified and the manner in which this summary was interpreted was never made clear. The Crown were unable to produce the original police statements. The witness, unnamed in the letter, was never identified and never gave evidence to the Tribunal. The petitioner had no opportunity to challenge the assertion in cross-examination. Despite acknowledging that these submissions, made on behalf of the petitioner had been made, the Tribunal gave no reasons for rejecting the petitioner's position that to rely on the letter would constitute a breach of natural justice.

[16] Further, the Tribunal heard evidence from the petitioner's sister, KS, who gave unchallenged evidence that the only persons in the room at the time of the incident were the petitioner, his assailant and herself. The Tribunal noted at paragraph 11(d) of the written reasons that she denied hearing any invitation to go outside for a "square go". In her handwritten statement, dated 16 November 2003, she stated:

"I am quite certain that no one else in the flat could have overheard the words spoken between (the petitioner) and (his assailant)."

On the basis of that unchallenged evidence, the unknown witness to whom reference is made in the letter from the procurator fiscal's office was not in the room at the time of the incident and could not have overheard the words spoken. Notwithstanding that, the Tribunal failed to give reasons for rejecting the evidence of KS or to explain how the apparent conflict between her evidence and the terms of the procurator fiscal's letter was resolved.

[17] Further, the Tribunal placed weight on the witness statement of TB, and drew the inference that there were two witnesses who spoke to the suggestion of a "square go": the unknown witness referred to in the letter by the procurator fiscal and, in addition, TB (paragraph 11(d) of the written reasons). TB did not give evidence and in her statement there is no reference to "square go". There was, in fact, no basis on which to infer that two witnesses separately spoke to the suggestion of a "square go". In failing to provide reasons for rejecting the submissions on behalf of the petitioner in this regard and placing reliance on the procurator fiscal's letter without explaining why, the Tribunal's decision was unreasonable and irrational.

Discussion

[18] I am persuaded that the criticisms directed towards the decision of the Tribunal, dated 28 February 2011, for the reasons set out before me, are well founded. In the context of the limited evidence available on the matter then under scrutiny, I consider that the approach by the Tribunal, resulting in the decision which it reached, was deficient, and was characterised by error in law, a breach of natural justice and a failure to give adequate reasons, all as submitted for the petitioner. That being so, I find that the decision is unreasonable. It therefore falls to be reduced.

Delay

[19] I was favoured with a further submission to the effect that the delay by the Tribunal in providing written reasons was contrary to section 6(1) of the Human Rights Act 1998 and was unreasonable and unlawful, amounting in itself to a breach of natural justice. Although I consider a delay of some 17 months in providing written reasons, without adequate explanation, to constitute a lamentable state of affairs which is to be deprecated, in the light of my determination in relation to the other arguments made for the petitioner, it is unnecessary for me to consider further whether the petitioner received a fair hearing in that respect.

Disposal

[20] The proceedings before me were limited to the issue of whether the petitioner's award of compensation should be reduced to any extent. I was informed that the petitioner is content with the decision that an award of criminal injuries compensation should be made in his favour and that the full value of that award, but for any reduction, under paragraph 13(d) of the Scheme, should be £500,000. In these circumstances, I shall sustain the petitioner's first, second, third, fourth and sixth pleas in law and repel the petitioner's fifth plea-in-law. In particular, I shall make an order of reduction of the decision of the Criminal Injuries Compensation Appeals Panel, dated 28 February 2011, and of the final decision notice of the First Tier Tribunal, Criminal Injuries Compensation, dated 15 March 2012, and remit the matter to a First Tier Tribunal, Criminal Injuries Compensation, differently constituted from the one which issued the decision of 28 February 2011, to consider whether, and the extent to which, the petitioner's own conduct should be considered in relation to the award and, if so, the extent to which, if at all, this should reduce or affect the making of an award under paragraph 13(d) of the Scheme.