United Kingdom House of Lords Decisions

Criminal Injuries Compensation Board, Ex Parte A, R v. [1999] UKHL 21; [1999] 2 AC 330; [1999] 2 WLR 974 (25th March, 1999)

LORD SLYNN OF HADLEY

My Lords,

A applied to the Criminal Injuries Compensation Board on 20 November 1991 for compensation claiming that, in the course of a burglary at her house by two men on 25 May 1991, she had been assaulted, raped and buggered. That application was refused orally on 31 August 1993 and the refusal was confirmed by letter dated 9 December 1993. On 14 February 1995 Carnwath J. gave her leave to move for judicial review of the decision, but on 15 December 1995, Popplewell J. refused relief and A's appeal was dismissed by the Court of Appeal on 16 May 1997. Simon Brown L.J. in the Court of Appeal said: "The issues raised on the appeal are many, various and difficult." With the leave of the House, she now appeals to your Lordships.

Three broad questions arise, a negative answer to any one of which may make an answer to the subsequent questions unnecessary, viz.: (a) should her application for judicial review have been allowed to proceed since she was so long out of time in applying; (b) if it should, were there grounds for setting aside the decision of the Board; (c) if there were, is it right now to set aside the decision and to send it back for further consideration?

The Grant of Leave

An application to move for judicial review cannot be granted unless leave is obtained. Two provisions are relevant to the incidence of delay. In the first place, R.S.C., Ord. 53, r. 4 provides:

  "(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, unless the court considers that there is good reason for extending the period within which the application shall be made."

Such an application may be made, as it was here, ex parte.

The second provision is section 31 of the Supreme Court Act 1981 ( [1998] Q.B. 659, at 670):

  "(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant--(a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made."

The co-existence of these two provisions is perhaps curious and has led to differences of interpretation and practice. In Reg. v. Dairy Produce Quota Tribunal for England and Wales, Ex parte Caswell [1990] 2 AC 738, 746- 747, per Lord Goff of Chieveley, the House considered, however, that the two can be read together. Thus, even if an application is not made promptly (and in any event within three months from the relevant date) the court may extend the period if it finds good reason for extending the time to make the application (Order 53, r. 4(1) and section 31(7)). There is undue delay for the purposes of section 31(6) if the application for leave is not made promptly or within three months of the relevant date. But even if it considers that there is good reason for extending the period, the court may refuse leave or may refuse the relief sought if in its opinion to grant relief would be likely to cause hardship or prejudice or would be detrimental to good administration.

In this case, Carnwath J. on an ex parte application granted leave and said: "I think I couldn't shut this out on delay because that is a point that can be taken in the proceedings if leave is granted" and "It seems to me that you should have leave, but I think that the question of delay--Board may want to raise that." The actual order he made was "Leave Granted." He clearly thus contemplated that there would be an opportunity for the Board to raise the question of delay and he did not in terms rule that there was "good reason for extending the period within which the application shall be made" nor did he extend the period.

It seems to me, however, that his intention in giving leave must have been to extend the period, otherwise he would have had to rule that the application was out of time and to have refused leave, and that the Board would have the opportunity to raise the issue of hardship, prejudice or detriment to good administration on the inter-partes hearing. He may, however, also have had in mind that the issue of "good reason for extending the period" could be re-opened at the substantive hearing.

Popplewell J. on the substantive hearing rejected a contention that there was here any hardship, prejudice or detriment to good administration. Leave or relief could not therefore be refused under section 31(6) of the Act of 1981. He ruled, however, that he was entitled to reconsider the question of delay on the basis that no good reason had been shown for extending it within the meaning of Order 53, r. 4(1), especially it seems "if the matter has, indeed, been reserved for full argument." He treated it in effect as a "conditional leave," subject to fuller argument and he refused to extend the time.

This approach has, your Lordships were told, been followed in practice in other cases, though the only reported decision directly in point to which we were referred was Ex parte Worth [1985] S.T.C. 564. In that case, Webster J. ruled that the giving of leave did not amount to an extension of time. The judge's task on the ex parte application was to do no more than to decide that there was an arguable case for judicial review and not to "determine any issue finally in favour of the applicant." He said:

 "In short I conclude, while recognising that the conclusion does not follow inevitably from the express wording of the rules in the Act (sic) that the granting of leave to move does not preclude the respondent from objecting that the application has been made out of time."

This view is reflected obiter in Patterson v. Greenwich London Borough Council (1993) 26 H.L.R. 159, per Evans L.J.

It seems to me that the two provisions produce the following result:

 (a) On an ex parte application, leave to apply for judicial review can be refused, deferred to the substantive hearing or given.

 (b) Leave may be given if the court considers that good reason for extending the period has been shown. The good reason on an ex parte application is generally to be seen from the standpoint, as here, of the applicant. Thus the reason for the delay here was "the practical difficulties [the applicant's solicitors] have encountered in trying to bring this matter before the court" (counsel for the applicant before Carnwath J.) It is possible (though it would be unusual on an ex parte application) that if the court considers that hardship, prejudice or detriment to good administration have been shown, leave may still be refused even if good reason for an extension has been shown.

 (c) If leave is given, then an application to set it aside may be made, though as the Court of Appeal stressed, this is not to be encouraged.

 (d) If leave is given, then unless set aside, it does not fall to be re-opened at the substantive hearing on the basis that there is no ground for extending time under Order 53, r. 4(1). At the substantive hearing there is no "application for leave to apply for judicial review," leave having already been given.

 (e) Nor in my provisional view, though the matter has not been argued and the question does not arise here, is there a power to refuse "to grant . . . leave" at the substantive hearing on the basis of hardship or prejudice or detriment to good administration. The court has already granted leave; it is too late to "refuse" unless the court sets aside the initial grant without a separate application having been made for that to be done. What the court can do under section 31(6) is to refuse to grant relief.

 (f) If the application is adjourned to the substantive hearing, the question under both Order 53, r. 4(1) (good reason for an extension of time) and section 31(6) (hardship, prejudice, detriment, justifying a refusal of leave) may fall for determination.

On this first question, it is not necessary to consider whether good reason for an extension of time had been shown on the facts. That issue was concluded by the decision of Carnwath J. I have no reason to think that that is a wrong result; on the contrary, like Simon Brown L.J., prima facie, I think it was the right result.

I would accordingly, as did the Court of Appeal, overrule Ex parte Worth and hold that Popplewell J. did not have jurisdiction to reconsider the question of an extension of time and whether good grounds had been shown under Order 53, r. 4(1) and to hold that they had not.

Application to Quash the Board's Decision

The Board, set up under the Prerogative in 1964, entertains "applications for ex gratia payments of compensation in any case where the applicant . . . sustained . . . personal injury directly attributable--(a) to a crime of violence . . . " (1990 Scheme, paragraph 4). By paragraph 6 of the Scheme, the 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, . . . of the circumstances of the injury . . . (b) the applicant has failed to give all reasonable assistance to the Board or other authority in connection with the application." By paragraph 25, it is for the applicant to make out his case at the hearing. "The Board will be entitled to take into account any relevant hearsay, opinion or written evidence, whether or not the author gives oral evidence at the hearings. The Board will reach their decision solely in the light of the evidence brought out at the hearing, and all the information and evidence made available to the Board Members at the hearing will be made available to the applicant at, if not before, the hearing." Legal aid is not available, but an applicant may be legally represented.

It has long been established that the Board's decisions are subject to judicial review (Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864 D.C.).

A's case, which was referred by a single member to a board of three members was that on 25 May 1991, when she was alone at home, two men came to her house. When she opened the door, one of them said "C.I.D., love" and both walked in. They assaulted her and damaged property in the house, marking red crosses on the walls. When they left, they took money and other property with them. Twenty minutes after they had left, she telephoned the police who came straight away. As she said was obvious, she told the police that she had been beaten up, particularly around the head and face, and that property had been stolen. She did not tell the police on this occasion of any sexual attack because she was distressed and embarrassed. On the same day the police took her to the North Middlesex Hospital where a doctor found bruising, though the notes of that examination by the doctor were not before the Board.

Subsequently, A contacted Victim Support and was advised to go to the police again. She did so on 28 May. She then gave details of the alleged rape and buggery and a statement was taken from her which she signed on 30 May. On that day she was examined by Dr. Susan West, a Police Doctor, at the request of the police.

At the hearing before the Board, A confirmed her statement in many respects, but gave further evidence as to the damage to her property and to her face. Detective Constable Saunders, in his evidence in chief, confirmed the damage to property, but said that there was no obvious physical injury to her, that he would have remembered if her face was red and swollen.

W.P.C. Richmond, who took A's statement dated 30 May 1991, also confirmed the damage to the furniture--the bed and cushions on the sofa had been slashed--and that it was difficult to get A to talk about the incident. This Officer accompanied A to Dr. West for a medical examination. The Officer gave evidence: "The Doctor could only see trauma to the back passage - the applicant had haemorrhoids."

The witness further stated that the investigating team was sceptical about the allegation. Further, Detective Constable Saunders gave evidence that from all inquiries, including "medical inquiries," nothing at all was discovered in support of the applicant's account.

The Tribunal did not find A a convincing witness and where her evidence differed from that of the police, they preferred the police evidence.

 "We directed ourselves that the onus was on the applicant to satisfy us initially that she was the victim of a crime of violence as alleged and in our consideration of the whole evidence including the delay in reporting and the destruction of the forensic evidence we concluded that she had failed to discharge that burden."

It was really for these two reasons, the delay and the destruction of the forensic evidence, that they recorded that the police investigating the alleged offence had in the end been sceptical about the allegations made.

The Board did, of course, have to evaluate the evidence and they were entitled to accept one side rather than the other, so that in the ordinary way the court would not interfere with their finding on an application for judicial review. The application for judicial review is not an appeal on fact. Moreover, the Board were right to put the onus on the applicant to establish that she was the victim of a crime of violence.

One aspect of the hearing, however, is disturbing. As has been seen, the Woman Police Constable who took A to see the Police Doctor clearly gave the Board the impression that the "trauma" in the rectum was due to haemorrhoids. Nobody--the police, the Board's Advocate, the Board itself -it seems asked whether there was a record by the Doctor of that interview. Nor of course did A, but, having been told that she should not ask for police statements as they would be produced at the hearing, it would not be surprising that she assumed that if there was a report from the Police Doctor, it would be made available with the police report.

In fact there was a report from the Police Doctor which the Board did not see and which, having described the Doctor's findings on examination of the anus and the vagina, recorded:

 "The anal findings are consistent with the allegation of buggery. The vaginal findings neither confirm nor exclude vaginal intercourse".

It is not suggested that the officer gave her inaccurate evidence deliberately, let alone fraudulently. Yet it is plain that in a matter of crucial importance, the Board was led to proceed on evidence which was wrong and they did not have the true facts.

Popplewell J. rejected contentions that the Board should have obtained the notes of 25 May 1991 from the North Middlesex Hospital and that the Board had not taken into account the effect on her of rape when considering her evidence. He was, however, clear that if the Board had had Dr. West's report, "it would have been very difficult for them to come to the conclusion that her credibility was nil." He did, however, conclude that "in fairness, the Board, alerted to the fact that there had been this report, should, of their own volition, have sorted out, or at least invited the applicant's view as to whether there should be an adjournment to obtain it."

Simon Brown L.J. ([1998] Q.B. 659, 677-678) rejected any suggestion that there was a duty on the Board to obtain evidence (on the basis of Reg. v. Chief Constable of Cheshire, Ex parte Berry (unreported), 30 July 1985, Reg. v. Criminal Injuries Compensation Board, Ex parte Parsons (unreported), 17 January 1990, Reg. v. The CICB, Ex parte Milton [1997] P.I.Q.R., P74) or to adjourn the case to obtain Dr. West's evidence since they had evidence from W.P.C. Richmond, though erroneous, as to what Dr. West had found. Moreover, he refused to apply as he saw it by extension the line of cases laying down that fraud, collusion or perjury provide grounds for judicial review, even though there has been no error or misconduct on the part of the Tribunal itself, and that a challenge may also lie when unfairness in the conduct of proceedings results from some failure on the prosecutor's part, even where no one had been guilty of fraud or dishonesty; that failure itself may be regarded as analogous to fraud. He referred to cases from Reg. v. The Leyland Justices, Ex parte Hawthorn [1979] Q.B. 537 to Ex parte Scally [1991] 1 Q.B. 537, 556.

Peter Gibson L.J. also refused to accept that there was any duty on the Board to obtain evidence. It was up to the applicant to prove her case and it was not impossible that the applicant could have obtained Dr. West's report herself. The Board were not alerted to the fact that there had been a report, merely that there had been a medical examination, and there was no evidence that it had been seen by the police by the time of the hearing. It was impossible to say that the Board's decision was vitiated because they did not adjourn or take steps to obtain a report. "The question that arises is whether the innocent misrepresentation of a material fact by a mere witness renders the decision of the Board unfair . . . I am not prepared [so to hold] on the facts of this case" (p. 799E).

Your Lordships have been asked to say that there is jurisdiction to quash the Board's decision because that decision was reached on a material error of fact. Reference has been made to "Administrative Law" (Wade and Forsyth (7th edition)) in which it is said at pp. 316-318 that:

 "Mere factual mistake has become a ground of judicial review, described as 'misunderstanding or ignorance of an established and relevant fact,' or acting 'upon an incorrect basis of fact.' . . . This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less needed in this country, since decisions based upon wrong fact are a cause of injustice which the courts should be able to remedy. If a 'wrong factual basis' doctrine should become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law."

"Judicial Review of Administrative Action" de Smith, Woolf and Jowell 5th ed., at p. 288:

 "The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention."

For my part, I would accept that there is jurisdiction to quash on that ground in this case, but I prefer to decide the matter on the alternative basis argued, namely that what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness.

It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness. Thus I would accept that it is in the ordinary way for the applicant to produce the necessary evidence. There is no onus on the Board to go out to look for evidence, nor does the Board have a duty to adjourn the case for further enquiries if the applicant does not ask for one. I accept as a general proposition the statement of Hutchinson, J. in Reg. v. Criminal Injuries Compensation Board, Ex parte Parsons (unreported) [17 January 1990]:

 "Provided reasonable steps are taken to obtain material and place it before the Board, and provided the material that has been obtained is fairly deployed and there is no concealment or unfair advantage taken, then . . . the Board has fulfilled its proper function."

Nor is it necessarily the duty of the police to go out to look for evidence on particular matters.

But the police do have a special position in these cases. The applicant accepted that the police had initially been supportive, even though she later criticised the evidence of D.C. Saunders, and there is no doubt that in the 10,000 or so decision hearings a year, the Board is very dependent on the assistance of and the co-operation of the police who have investigated these alleged crimes of violence. Thus your Lordships were told that:

 "The Board has an informal understanding with the police that relevant documents will be brought to the hearing by the police officers concerned, inspected by the Board's advocate and relevant material disclosed to the applicant at the hearing." (Appellant's case, paragraph 5).

 "The Board rely heavily on the co-operation of the police in providing evidence (often hearsay and sometimes opinion, both permitted under paragraph 25 of the 1990 scheme) in relation to the question whether a crime of violence has been committed". (Respondent's case, paragraph 11).

In the present case, the police and the Board knew that A had been taken by the police to see a Police Doctor. It was not sufficient for the police officer simply to give her oral statement without further inquiry when it was obvious that the Doctor was likely to have made notes and probably a written report. When the subsequent report dated 19 January 1992 of consultations on 13 November 1991 and 18 December 1991 which was available to the Board and which referred to the alleged rape and in which it is reported that "It is likely that the bleeding is associated with an injury to the anal sphincter at the time of rectal rape"; and that "Anal intercourse, particularly if traumatic, causes long-standing injury to the anal sphincter mechanism is taken into account," it seems even more necessary that inquiries should have been made as to the existence of Doctor West's report and an adjournment taken to obtain it.

It is true that the medical report does not prove the buggery and that the Board might still have not been satisfied as to her claim. Yet it seems to me that, if the report had been produced, it would not have been possible for the Board to say:

 "We considered the medical evidence but concluded that it gave no assistance in determining whether she had been raped and buggered, as alleged."

It seems to me also that it is highly likely that the Board would not have been so ready to take an adverse view of the fact that she had washed her clothing (which she said was because she did not want to report the attack and which the Woman Police Constable treated as having been done in order to destroy forensic evidence) or of the fact that she did not mention the rape on 25 May 1991 when she first saw the police (which she said was due to the fact that she did not want to tell the police because of a previous sexual humiliation and which the Board seems to have accepted made the police sceptical about the allegations she was making).

There are other features about the case which are troublesome. In the first place Detective Constable Saunders denied that there had been "any medical arrangement" on 25 May 1991 and that he had called the ambulance. He said that he could not remember going with A to the hospital, but later, after checking with the hospital, he confirmed that A did go to the hospital on 25 May and it was likely that he went too. He also said that she had no obvious injury, which seems surprising in view of the fact that she was taken to the hospital on the basis of her complaints that she had been hit on the head and face. Moreover, the same officer gave evidence that "nothing at all was discovered in support of the applicant's account," yet on his own and on WPC Richmond's evidence, there was clear evidence of damage to walls and to the furniture, cushions and the bed had been slashed and there were red marks on the walls. Moreover, if Dr. West's evidence had been available, he could not have said that nothing was discovered in support of the applicant's case.

There is one other matter of less significance, but which seems to have weighed with the Board. They found that there was an inconsistency between A's evidence that her knickers were pulled down by one of the attackers and then note "I was wearing a shirt and T-shirt. No bra. Knickers." If knickers is read with "I was wearing," as seems the more natural meaning, though the note is ambiguous, then there was no inconsistency. In this, it seems to me, the Board were in error, which may have been due in part to the adverse view they had formed of A in the absence of the important medical evidence.

I consider therefore that, on the special facts of this case and in the light of the importance of the role of the police in co-operating with the Board in the obtaining of evidence, that, there was unfairness in the failure to put the Doctor's evidence before the Board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done.

That leaves the third question which in one way is the most difficult. The events happened and the Board's hearing took place a long time ago and the difficulties of re-opening the matter now are obvious. On the other hand, the only new evidence involved is documentary and it is possible for the Board to consider whether Dr. West's report changes the picture in the applicant's favour. Despite the difficulties, a breach of the rule of natural justice having been established, I would quash the decision and remit the matter to the Board for reconsideration in the light of that report.

LORD MACKAY OF CLASHFERN

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley and agree that this appeal should be disposed of as he proposes for the reasons he has given.  I wish to add that I particularly agree with what Simon Brown L.J. said in the Court of Appeal [1997] 3 W.L.R. 776, 788H-789E about the object of rule 4(1) and the consequences that follow.

LORD NOLAN

My Lords,

I too have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley, and I too agree that this appeal should be disposed of as he proposes for the reasons which he gives.

As regards the first question raised by the appeal I think it of particular importance as a practical matter that the judge hearing the initial ex parte application should be entitled to defer the resolution of the rule 4(1) issue until the substantive inter partes hearing. I suspect that this was the result which Carnwath J. intended to achieve. It would have been in line with the practice frequently followed over the years by the judges taking the Crown Office list, and sanctioned by Webster J. in Ex parte Worth (1985) S.T.C. 564. There was much to be said for the practice. Ex parte applications for leave often have to be prepared hastily, especially if the applicant is running late. Even when all proper care and diligence has been exercised it is possible that the applicant's affidavit may over-state or mis-state the grounds upon which he submits that there is "good reason" for extending the time limit. If the judge is minded to grant leave on the merits but retains some doubt about the rule 4(1) issue it is only right that he should be able to defer it for determination at the full hearing. I accept, however, that the order "leave granted" which Carnwath J. made was unambiguous, and was not open to reconsideration by Popplewell J. More generally I would now regard it as settled law that the approach adopted by Webster J. in Re Worth did not give effect to the different functions to rule 4(1) and section 31(6). The result which these three very experienced judges sought to achieve can, however, be attained in appropriate cases by means of a deferment. Now that the position has been clarified by my Lord I trust that no further problems will arise in this area.

As regards the second and third questions raised by the appeal, the features of the case to which my noble and learned friend has referred are in my judgment sufficiently disturbing to justify the exceptional course which he proposes. The appearance of unfairness is accentuated in the circumstances by the Board having given weight to the adverse view formed by the police of the merits of the appellant's claim.

LORD CLYDE

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley and agree that this appeal should be disposed of as he proposes for the reasons he has given.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

I have had the opportunity of reading in draft the speech prepared by my noble and learned friend Lord Slynn of Hadley. I agree that this appeal should be allowed and that the decision be remitted to the Criminal Injuries Compensation Board as he proposes.

I also agree with the reasons which he gives for arriving at that conclusion. There was an inadequate observance of the principles of natural justice. As Lord Slynn has pointed out, it is not necessary for the determination of the present appeal to enter upon the question whether error of fact can without more be relied upon as a ground for judicial review. I will therefore on this occasion express no opinion about the problems to which the acceptance of such a ground would give rise nor discuss the soundness of the views expressed in the passages he has cited from the leading textbooks. Such consideration will have to await a case which requires their decision.