Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. JR/379/2009

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Rowland

Order: The decision of the Criminal Injuries Compensation Appeals Panel dated 30 June 2008 is quashed.

REASONS FOR DECISION

1. The Applicant was a victim of a crime of violence on 5 February 2000, as a result of which he suffered a serious brain injury. He made a claim for criminal injuries compensation on 2 May 2000 and therefore the 1996 Scheme applied to him. What, if any, decision has been made as to the amount of compensation I cannot say but the Criminal Injuries Compensation Authority has made decisions under paragraph 13(e) of the Scheme which provides that –

“A claims officer may withhold or reduce an award where he considers that:

…

(e) the applicant’s character as shown by his criminal convictions (excluding convictions spent under the Rehabilitation of Offenders Act 1974) or by evidence available to the claims officer makes it inappropriate that a full award or any award at all be made”

An initial decision was made on 15 February 2005 and, upon the claimant’s application for a review, a review decision was made on 28 December 2006. The claimant, still being dissatisfied, appealed to the Criminal Injuries Compensation Appeals Panel. Before the Panel, the Authority’s presenting officer argued for a reduction of at least 75%, based on the points system set out in the Authority’s guidance to the Scheme. The Panel accepted that the points system would produce such a result but, in its discretion, decided that a reduction of only 33¹/₃% should be applied to any award.

2. The claimant brought judicial review proceedings in the Administrative Court on the ground that the Panel had misconstrued the Authority’s guidance and ought to have taken 25% as its starting point, rather than 75%. Burton J granted permission on 18 December 2008. The case was then transferred to the Upper Tribunal. It had to be transferred back to the Administrative Court and then transferred to the Upper Tribunal again by Walker J, due to a procedural defect in the first transfer, but it now comes before me. The Authority does not accept that the Panel misconstrued the published guidance but it does accept that unpublished guidance at the time suggested that the proper reduction in this case should have been 25%. It therefore does not oppose the application for judicial review. Neither does the Respondent, the successor of the Panel, whose involvement in these proceedings has, quite properly, been limited. I have indicated that I consider that the application must succeed. In those circumstances, the claimant no longer presses for an oral hearing. I am satisfied that I can properly make a decision without a hearing.

3. The 1996 Scheme is made under the Criminal Injuries Compensation Act 1995 and has been approved by a resolution of each House of Parliament. Paragraph 13(e) is validly made under section 3(1)(a) of the Act. It confers a broad discretion which must be exercised so as to further, and not defeat, the inferred intention of Parliament in approving the Scheme and, in particular, that paragraph. However, although it is possible to infer the broad intention of Parliament from the Scheme itself, that provides limited assistance. Thus, for instance, although it is possible to infer that the number and seriousness of offences committed by the claimant will be relevant, no guidance is given as to how those factors are to be measured. In those circumstances, while the Authority is not entitled to fetter its discretion, it is entitled to have a policy that promotes consistent decision-making. Good administrative practice requires that the policy be published so that claimants and others can see whether it has been appropriately applied in any particular case.

4. Here the published policy is in the form of a Guide to the 1996 Scheme. In paragraphs 8.15 to 8.17, it contains a points system for calculating the proportion by which an award should be reduced in the light of offences committed by the claimant, although it is made plain that claims officers may depart from it where appropriate. So far as is relevant to the present case, those paragraphs provide –

“8.15 Paragraph 13(e) of the Scheme provides that an award may be withheld or reduced on account of an applicant’s character as shown by his criminal convictions (excluding convictions which are spent). This is because a person who has committed criminal offences has probably caused distress and loss and injury to other persons, and has certainly caused considerable expense to society by reason of court appearances and the cost of supervising sentences, even when they have been non-custodial, and the victims may themselves have sought compensation, which is another charge on society. Even though an applicant may be blameless in the incident in which the injury was sustained, Parliament has nevertheless provided in the Scheme that convictions which are not spent under the Rehabilitation of Offenders Act 1974 should be taken into account.

8.16 The scale of penalty points listed opposite is an indicator of the extent to which any unspent convictions may count against an award. These points, which are based on the type and/or length of sentence imposed by the Courts together with the time between the date of the sentence and receipt of the claim, are a guide to the gravity of an offence in relation to a claim. Any sentence imposed after the claim has been received will also be taken into account.

* Sentences imposed after the date of receipt of your application will be treated as if they had occurred on the day before the application was received.

The percentage reductions attracted by various levels of penalty points are as under;

Notes

1. Imprisonment, whether suspended or not, means the sentence imposed by the Court, not the time spent in prison.

2. …

3. Sentences ‘spent’ under the Rehabilitation of Offenders Act 1974 do not attract penalty points.

4. Other sentences will be placed into one of the above 5 categories by CICA according to their comparative seriousness as measured by the rehabilitation period(s) they attract under the Rehabilitation of Offenders Act 1974.

8.17 The scale of penalty points is not binding at any stage whether on decisions made by the Authority or a determination made by the Criminal Injuries Compensation Appeals Panel. It is intended to provide a readily understood guide to the relative significance of the claimant’s criminal record. The convictions recorded in any individual case and the points attributable to them will be assessed within the context of the particular circumstances of the claim and other related factors. For example, a points total which indicates a reduction or refusal of an award may be mitigated where the injury resulted from the applicant’s assistance to the police in upholding the law or from genuinely helping someone under attack. Or there may be evidence of rehabilitation not otherwise indicated by the points system which may be taken into account. Conversely, a low points score is no guarantee that an award will be made where, for example, the record contains offences of violence or sexual offences”

5. In the present case, the claimant was of good character at the time he made his claim for compensation but, by the time the Authority got round to making its first decision, he had been convicted on 5 January 2005 of an offence of failing to provide a specimen for analysis and for driving otherwise than in accordance with a licence. He was fined £150 for the first offence and was disqualified for driving for 12 months. His licence was endorsed in respect of the second offence but he otherwise received no separate penalty. By the time of the Authority’s review decision, the claimant had been convicted on 5 December 2006 of driving with excess alcohol and again for driving otherwise than in accordance with a licence. He was again fined £150 for the first offence but this time he was disqualified from driving for three years. Again, his licence was endorsed in respect of the second offence but no other separate penalty was imposed. The claimant had not been convicted of any further offences before the case was heard by the Panel.

6. The Guide, unlike the Scheme itself, has not been approved by Parliament. Claims officers are naturally expected to apply it, even if it is not formally binding. However, it did not bind the Panel in any way and does not now bind the Panel’s successor, the First-tier Tribunal. It was open to the Panel, as it is now open to the First-tier Tribunal, to reject the Guide altogether, provided it acted consistently with the Scheme and provided also that it gave a good reason for its approach. In any event, paragraphs 8.15 to 8.17 do not provide for a rigid code. As paragraph 8.17 recognises, the points system is best regarded as a starting point for claims officers. As will appear, they have internal guidance to assist them. Again, officers are expected to follow that internal guidance but it could not be binding on the Panel or, now, the First-tier Tribunal, even if it were published.

7. In fact, the Panel was not invited by counsel to reject the Guide. Two arguments were advanced.

8. The first was that no reduction should be made in the award because the claimant’s judgment and capacity had been affected by the incident itself. The Panel accepted that the claimant’s judgment and capacity had been reduced to some extent, and for that reason ignored certain behaviour in respect of which criminal proceedings were not brought, but it considered that “some culpability must attach to these incidents”. No challenge is made to that part of the Panel’s reasoning.

9. The second argument advanced on behalf of the claimant was that the Guide indicated only a 25% reduction as a starting point, because the claimant had been fined in respect of only two offences and so had accrued only 4 points. Against that, the Authority’s presenting officer argued that the claimant had been convicted of four offences and that the endorsements imposed for the two lesser offences were equivalent to category 4 cases, having regard to note 4 at the end of paragraph 8.16, so that the claimant had accrued a total of 8 points, indicating a reduction of 75%. The Panel accepted the latter argument.

10. It is not necessary for me to choose between these two competing arguments and, indeed, I do not find either of them entirely convincing. I have some doubt that note 4 at the end of paragraph 8.16 strictly applies because I doubt that a mere endorsement attracts any rehabilitation period under the Rehabilitation of Offenders Act 1974, even when regard is had to section 5(8) of that Act. The language of that section is not entirely apt to include endorsements (whereas it refers specifically to disqualification) and it seems to me that that is probably because endorsements were regarded as the mere recording on a licence of a disqualification or penalty points and were not intended to be within the scope of section 5(8) for the simple reason that the “totting-up” provisions of what became the Road Traffic Offenders Act 1988 and the right under that Act to obtain a clean licence once endorsements ceased to be relevant appear to have made it unnecessary for there to have been any rehabilitation period under the 1974 Act. On the other hand, it is arguable that being convicted of two offences is worse than being convicted of one, even if they arise out of the same event, and the fact that no separate penalty is imposed for an offence does not necessarily mean that the court did not have it in mind when fixing the penalty for another offence. The truth is that the points system in the Guide is not sufficiently detailed to provide much in the way of help in applying paragraph 13 of the Scheme in this or, I suspect, a substantial proportion of other cases. As Mr Adam Weitzman for the claimant pointed out in his statement of grounds for judicial review, a literal reading of the Guide might suggest that conviction in respect of a number of very minor offences should lead to the accumulation of more points than a conviction for one offence that would usually be regarded as more serious than all the small offences taken together.

11. In those circumstances, it is perhaps not surprising to find that the Authority gives supplemental guidance to its staff, which is itself subject to regular review. It is, however, astonishing and highly unsatisfactory that that supplemental guidance, which puts an important gloss on the published policy, should not itself have been published. It is about thirty years since what was then the Department of Health and Social Security started to publish its equivalent internal guidance (see, now, various guides including the Decision Makers’ Guide in 14 volumes published at http://www.dwp.gov.uk/publications/specialist-guides/#benefits).

12. The Authority’s supplemental guidance is, I am told, available to staff on its Intranet. The material part of it has apparently not been changed since at least 2000. Nonetheless, it appears that the decision-makers and presenting officer in this case overlooked this supplemental guidance and relied on what they considered to be a literal construction of the Guide. The lack of publication meant that the supplemental guidance was hidden from the Panel and the claimant’s representatives. That was particularly unfortunate in this case because the gloss the supplemental guidance put on the published Guide was wholly to the advantage of the claimant. Happily, it has been revealed in the Authority’s detailed grounds of defence in these proceedings, to which the relevant part is appended.

13. Paragraph 2.8.5.0 states –

“If an applicant has received a number of differing sentences in respect of one conviction, only the most serious sentence should be taken into account, for the purposes of the Scheme”

An example is given and then the paragraph continues –

“This principle also applies where an applicant has been convicted of a series of related offences. Instead of counting each conviction in our assessment, we should take into account only the most serious sentence.”

14. On that basis, it is conceded by the Authority that, even on its view that there were no special circumstances, it should have reduced the award by 25% rather than 75% and that the claimant and the Panel were inadvertently misled as to the Authority’s interpretation of its own Guide.

15. Does it follow that the Panel’s decision must be quashed on the ground that it was erroneous in point of law, given that the Guide was not binding on it anyway? The Authority has not resisted my suggestion that the Panel’s decision would have to be quashed and in my judgment it is inevitable, given the Panel’s reasoning. The Panel accepted the presenting officer’s submission as to the interpretation of the Guide and must plainly have understood that a person in the claimant’s position could usually expect a reduction of 75% in any award. It is also clear that, having referred to the claimant’s previous good character and found that the effects of the relevant crime of violence could have combined with the drink he had taken to affect his better judgment, it intended to impose a lower than usual reduction. If that is so, it is inconceivable that it would have imposed a reduction that was actually higher than the Authority would have imposed had its decision-makers followed their instructions. It would have been obliged to give different reasons for its decision.

16. There are at least two legal bases for quashing the decision. In R. v Leyland JJ ex parte Hawthorn [1979] Q.B.283 and R. v Bolton JJ, ex parte Scally [1991] 1 Q.B. 537, convictions were quashed where errors by the prosecution resulted in proceedings being unfair even though the justices were not themselves at fault. The same approach is applicable here. An alternative approach is suggested by R. (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, based on E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] Q.B.1044, where it was held that a decision is erroneous in point of law if based on a mistake as to a material fact which can be established by objective and uncontentious evidence, where the applicant and his advisers were not responsible for the mistake and where unfairness resulted from it. Here there was a mistake as to how in fact the Authority normally approached similar cases, which was highly relevant from the point of view of consistency, the evidence of the mistake is uncontentious and the Applicant’s advisors can hardly be said to bear any responsibility for the mistake when the supplementary guidance was kept hidden from them.

17. In his statement of grounds for judicial review, Mr Weitzman suggested that the High Court to whom the grounds were addressed should substitute a decision for that of the Panel. However, this is not an appeal and, even assuming that the Panel was a “tribunal” for these purposes, I am precluded by section 17(2)(c) of the Tribunals, Courts and Enforcement Act 2007 from substituting a decision because I am not satisfied that “without the error, there would have been only one decision that the … tribunal could have reached”. The Court ‘s powers were similarly limited (see section 31 of the Senior Courts Act 1981, as amended by section 141 of the 2007 Act).

18. The effect of quashing the Panel’s decision is that a fresh decision must be made by the First-tier Tribunal, to whom the Panel’s functions have been transferred.

Mark Rowland

23 April 2010