IN THE UPPER TRIBUNAL Case Nos: JR/1510/2009
ADMINISTRATIVE APPEALS CHAMBER JR/1860/2009
The Hon. Mr Justice Nicol
(sitting as a Judge of the Upper Tribunal)
His Honour Judge Sycamore Chamber President ( Health, Education and Social Care)
Upper Tribunal Judge Mesher
Sitting at Harp House on 24 May 2010
Paul Kirtley (Catherine Ridley, solicitor, British Transport Police Federation) for Heidi Withey
Nigel Cooksley QC (Pattinson and Brewer, solicitors) for Gareth Jones
Nicholas Yell (Pardoes, solicitors) for Clive Bishop
Ben Collins (Treasury Solicitor) for the Criminal Injuries Compensation Authority
The First Tier Tribunal (Social Entitlement Chamber) did not appear and was not represented.
DECISION OF THE THREE-JUDGE PANEL
The applications in cases JR/1510/2009 (Ms Withey) and JR/1860/2009 (Mr Jones) against the decisions of the Social Entitlement Chamber (Criminal Injuries Compensation) of the First-tier Tribunal sitting on 12 May 2009 (Taunton, case no: X/08/220863) and 5 May 2009 (London, case no: 07/222710) respectively are dismissed. The application of the Criminal Injuries Compensation Authority in Case JR/1739/2009 (relating to Mr Bishop) against the decision of the Social Entitlement Chamber (Criminal Injuries Compensation) of the First-tier Tribunal sitting on 13 May 2009 (Taunton, case no: X/08/223857) succeeds. The Upper Tribunal hereby makes a quashing order in respect of that decision (Tribunals, Courts and Enforcement Act 2007, section 15(1)(c)). The decision is substituted that Mr Bishop’s appeal against the review decision of the Criminal Injuries Compensation Authority issued on 18 August 2008 refusing to make an award of compensation is dismissed (Tribunals, Courts and Enforcement Act 2007, section 17(1)(b) and (2)).
REASONS FOR DECISION
1. These three matters have been heard together. They all involve the Criminal Injuries Compensation Scheme. For the most part the scheme is confined to those who have suffered personal injury as the result of a ‘crime of violence.’ All three cases concern the interpretation and application of that expression. In all three cases, the Criminal Injuries Compensation Authority (‘CICA’) concluded that no compensation was payable. The Applicants then appealed to the First-tier Tribunal (Social Entitlement Chamber) (‘the FTT’). In Withey and Jones the FTT dismissed the appeals. In Bishop it allowed the appeal. There is no right of appeal from the FTT in these circumstances, but there can be an application for judicial review. The Upper Tribunal has jurisdiction under s. 15(1) and (2) of the Tribunals, Courts and Enforcement Act 2007 to grant a quashing order, a mandatory order and a declaration (among other powers). One of the conditions for the exercise of that jurisdiction is that the case falls within a class specified in a direction given by the Lord Chief Justice (s. 18(6)). The Lord Chief Justice has directed that these classes should include any decision of the FTT on an appeal in the exercise of a right conferred by the Criminal Injuries Compensation Scheme. The other conditions in s.18 are met. In these cases the Upper Tribunal, therefore, hears and determines applications for judicial review of the FTT. Ms Withey and Mr Jones applied for the decisions of the FTT in their appeals to be quashed. The CICA made a like application in respect of the FTT’s decision on the Bishop appeal. Permission to apply was given in each case by a judge of the Upper Tribunal. Judge Rowland, acting under powers delegated by the President of the Administrative Appeals Chamber, directed that, because of the important points of principle involved, the three cases be heard together by a three-judge panel.
The Criminal Injuries Compensation Scheme
2. A scheme for compensating the victims of crime was first introduced in 1964. It was then operated on an ex gratia basis. It was later put on a statutory basis which is now to be found in the Criminal Injuries Compensation Act 1995. This obliged the Secretary of State to put forward a scheme for compensating ‘criminal injuries’, but the meaning of this term and the remainder of the scheme were broadly left to the Secretary of State’s discretion, subject to the need for approval by affirmative resolution of each House of Parliament. The scheme applicable at the date of the applications for compensation in the present cases was that adopted in 2001. A new scheme was adopted with effect from 3 November 2008 which applies to applications for compensation made from that date onwards. There are some minor differences in the substantive provisions discussed in this decision, but they do not affect the questions of law that we have had to decide.
3. Paragraph 6 of the 2001 Scheme says: ‘Compensation may be paid in accordance with this Scheme: (a) to an applicant who has sustained a criminal injury on or after 1 August 1964…’ Paragraphs 8 – 12 then define what is meant by ‘criminal injury’. Materially to the present applications they say:
‘8. For the purposes of this Scheme, “criminal injury” means one or more personal injuries as described in the following paragraph, being an injury sustained in Great Britain and directly attributable to:-
(a) a crime of violence (including arson, fire-raising or an act of poisoning); or
(b) an offence of trespass on a railway; or
(c) the apprehension or attempted apprehension of an offender or a suspected offender, the prevention or attempted prevention of an offence, of the giving of help to any constable who is engaged in any such activity.
9. For the purposes of this Scheme, personal injury includes physical injury (including fatal injury), mental injury (that is temporary mental anxiety, medically verified, or a disabling mental illness confirmed by psychiatric diagnosis) and disease (that is a medically recognised illness or condition). Mental injury or disease may either result directly from the physical injury or from a sexual offence or may occur without any physical injury. Compensation will not be payable for mental injury or disease without physical injury, or in respect of a sexual offence, unless the applicant:
(a) was put in reasonable fear of immediate physical harm to his own person; or
(c) in a claim arising out of a sexual offence, was the non-consenting victim of that offence (which does not include a victim who consented in fact by was deemed in law not to have consented); or
(d) being a person employed in the business of a railway, either witnessed and was present on the occasion when another person sustained physical (including fatal) injury directly attributable to an offence of trespass on a railway, or was closely involved in its immediate aftermath…
10. It is not necessary for the assailant to have been convicted of a criminal offence in connection with the injury. Moreover, even where the injury is attributable to conduct within paragraph 8 in respect of which the assailant cannot be convicted of an offence by reason of age, insanity or diplomatic immunity, the conduct may nevertheless be treated as constituting a criminal act.
11. A personal injury is not a criminal injury for the purposes of this Scheme where the injury is attributable to the use of a vehicle, except where the vehicle was used so as deliberately to inflict, or attempt to inflict, injury on any person.’
The 1995 Act requires the Secretary of State’s scheme to include provisions for a right of appeal. In 2001 appeals went to a specialist panel. They are now, from 3 November 2008, heard by the FTT (see s.5 of the 1995 Act and paragraph 61 of the 2008 Scheme). In the case of Mr Jones the appeal against the CICA review decisions was made before 3 November 2008, but from that date continued as an appeal to the FTT (Transfer of Tribunal Functions Order 2008, art. 3, Sched. 1 and Sched. 4, paragraph 1). In the cases of Ms Withey and Mr Bishop the appeals were made after 3 November 2008 and so lay directly to the FTT (paragraphs 67 and 68 of the 2008 Scheme). All the parties to the present application agreed that the FTT had full powers on an appeal and so it could reconsider the facts of the case and reach a different conclusion on these than the Authority had done. Paragraph 64 of the 2001 Scheme expressly provided that the burden of proof is on the appellant to the civil standard (i.e. the balance of probabilities) before the Criminal Injuries Compensation Panel. There is no equivalent provision in the 2008 Scheme relating to the FTT or in the FTT Procedure Rules (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008), but the same position would be required as a matter of general principle.
4. Our jurisdiction is, of course, more limited. Exercising a judicial review function, we can only grant the relief which the Applicants seek if we are persuaded that the FTT erred in law in the case in question.
5. In 2007 Ms Withey was an officer with the British Transport Police. She was based at Bristol Temple Meads station. On 22nd July 2007 at approximately 6.45am, she had changed out of her uniform and was about to leave for home. She was in a private part of the police office with a PC McDermott who was also preparing to leave. A man burst in. He came through a door to which the public would not have access. His name was later found to be Marcus O’Reilly. He was a large man – about 6’ 3” tall. In his left hand he held a mobile phone. His right hand was clenched around an object which could not be seen. Ms Withey gave evidence to the FTT on 12 May 2009 that she felt vulnerable. At 5’4” she was much smaller than Mr O’Reilly. She did not have any protective clothing on. She touched Mr O’Reilly’s arm, but he shrugged it off. He said that people were out to kill him. She asked him what he had in his right hand to which he responded, ‘don’t worry about it.’ Ms Withey then went to get more help from other colleagues. She returned with two other officers. One was PC Jukes who also gave evidence to the FTT. He drew his baton. At this point Mr O’Reilly dropped what he had been holding in his right hand. It was a 12” kitchen knife. O’Reilly was then placed on the floor and arrested. A second knife was found in one of his pockets. Mr O’Reilly was subsequently detained under the Mental Health Act 2005. The applicant told the FTT that the incident had left her quite shaken and the possibilities of what might have occurred caused her endless sleepless nights.
6. The applicant alleged that she had been the victim of an assault which had caused her to suffer post traumatic stress disorder. The FTT defined the issues which it had to decide as (a) whether Ms Withey had been the victim of a crime of violence and (b) if she had, whether she had been put in reasonable fear of immediate physical harm to her own person. The first issue was a reference to paragraph 8 (a) of the Scheme; the second to paragraph 9.
7. In a section of its decision headed ‘findings of fact’, the FTT said this in paragraph 20:
c. The alleged offender was holding a mobile telephone in his left hand and had his right hand concealed under his jacket. While it is accepted that those concerned (including the applicant) thought the man was holding something until he threw the knife on the table, it was not known what he was holding or indeed that it might have been a weapon.
d. The alleged offender had not threatened anyone in the room.
e. The person in immediate physical proximity to the alleged offender was PC McDermott.
f. The applicant felt able to leave to go and get help.
g. The applicant was content to return with her colleague, PC Jukes, who followed her and so despite the fact that the applicant was no longer in uniform with the protection that went with that, she felt confident enough to return to the situation and lead the way
h. The situation was well controlled throughout and even more so when PC Jukes was on the scene.
i. The acts of the alleged offender were not an intentional assault but constituted a reckless assault.
j. It was only after the incident that the applicant looking back felt concerned for ‘what might have been’. The applicant had not therefore been in fear of immediate harm to her own person.’
8. The next section of the FTT’s decisions is headed ‘reasons’ and says this:
‘21. For the Applicant’s appeal to succeed, the applicant had to satisfy the Tribunal in respect of two paragraphs under the scheme. In so far as paragraph 8(a) was concerned, the Tribunal accepted that for an assault to have occurred no actual violence is necessary and that an assault can be intentional or reckless. The Tribunal was not satisfied that any acts by the alleged offender were intentional although they accepted that they could be reckless.
22. The Tribunal was not, however, satisfied on the balance of probabilities that paragraph 9(a) of the scheme was satisfied. For the appeal to succeed under this paragraph the applicant would have to satisfy the Tribunal that she [was] put in reasonable fear of immediate physical harm to her own person. In light of the Tribunal’s finding that PC McDermott was standing immediately next to the alleged offender and subsequently other officers and in particular PC Jukes were involved in restraining the alleged offender, the Tribunal were not satisfied that the situation was ever out of control or that the alleged offender’s behaviour caused the applicant to fear immediate physical personal violence because the situation was appropriately and indeed extremely well managed. There was no express threat of violence and no actual physical violence occurred. For these reasons the applicant’s appeal was not successful and it was not therefore necessary for the Tribunal to consider the medical evidence that the applicant submitted in support of her appeal.’
9. Mr Kirtley, on behalf of Ms Withey, says that the FTT was quite correct to note that an assault may occur even though there is no physical contact between the defendant and the victim. An assault is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence – see for instance R v Ireland, R v Burstow  AC 147. In paragraph 20(i) and again in paragraph 21 the FTT expressly found that Mr O’Reilly had assaulted the applicant. If they correctly applied the law that must have involved a finding that Mr O’Reilly’s actions caused the applicant to fear immediate unlawful violence. Yet in their consideration of paragraph 9 of the Scheme, the FTT ignored this implicit conclusion. On the contrary, they found the exact opposite: that the applicant had failed to show that she was caused to fear immediate physical violence. This, Mr Kirtley argued, shows that the FTT erred in law. In reaching its decision on paragraph 9 of the Scheme it failed to take into account the highly material finding which it implicitly had just made in relation to paragraph 8 of the Scheme. Alternatively, the decision betrayed such a misunderstanding of the law or an incoherence in its rational basis that the matter should be remitted to the FTT for a fresh determination.
10. We disagree. Where an Applicant alleges that she has suffered harm to her mental health but not (other) physical injury she must show under paragraph 9(a) that she was put in reasonable fear of immediate physical harm. There is a subjective element to this (Was the Applicant in fear of immediate physical violence?) and an objective element (Was such a fear reasonable?). Mr Kirtley is entitled to say that the FTT looked at both when considering paragraph 9. It was its finding that the Applicant had not proved the subjective element which conflicted with the legal ingredients of an assault that it also found had taken place. However, we draw a different conclusion from the FTT’s reasoning than does Mr Kirtley. We think it likely that the FTT (rightly) saw this element of the crime of assault as covering the same ground as the subjective element in paragraph 9(a). It dealt with this common matter in paragraphs 20(j) and 22. It meant paragraphs 20(i) and 21 to be focussing only on the mental element of crime: intention (which it did not find) and recklessness (which it did). An alternative view is that the FTT simply overlooked the need for the victim to apprehend immediate physical violence before the offence of assault is committed. As paragraph 21 of the decision shows, there were other ingredients of the crime of assault to which the FTT paid express attention – the absence of any need for physical contact, and the sufficiency of recklessness as a form of mens rea. Nowhere in its decision, though, does the FTT recall that a fear of immediate violence is also a necessary ingredient of the crime. What we cannot accept as realistic is that the FTT did mean to say implicitly by paragraphs 20(i) and 21 that the Applicant had been in fear of immediate physical violence and then to say the exact opposite in the sections of its decision which followed straight after those passages.
11. Our second alternative attributes a rather unflattering oversight to the FTT. But that is not sufficient for us to quash the decision. Its finding on paragraph 9(a) of the Scheme was express. It was unambiguous. It was clearly and sufficiently reasoned so as to support a finding that the applicant did not reasonably anticipate immediate physical harm. It was fatal to her claim. In our judgment any misunderstanding as to the overlap with the crime of assault was not material.
12. We should make clear that Mr Kirtley did not argue that the only finding which the FTT could rationally have made was that the applicant feared immediate physical harm to herself. In our view, he was right not to do so. The FTT heard oral evidence from the Applicant and PC Jukes. It gave clear and rational reasons for its evaluation of that evidence. A perversity challenge would have been sure to fail.
13. This Tribunal raised with the parties whether paragraph 8(c) might have been applicable in the light of the terms of section 16 of Railway Regulation Act 1840 (punishment of persons obstructing the officers of any railway company, or trespassing upon any railway). An offence is committed under that section if, among other things, “any person shall wilfully trespass upon any railway, or any of the stations or other works or premises connected therewith, and shall refuse to quit the same upon request to him made by and officer or agent of [any railway company]”.. In the event, neither party in their further written submissions considered that any possible reliance on paragraph 8(c) could have carried the Applicant’s case further forward. Either she was in reasonable fear of immediate personal harm, in which case she was the victim of a crime of violence (assault) or she was not, as the FTT held, and she failed on paragraph 9(a). We agree, especially as we have rejected Mr Kirtley’s challenge to the FTT’s finding on paragraph 9(a). It may, though, be necessary to explore in other cases interesting and difficult issues such as whether offices like that into which Mr O’Reilly trespassed in the present case are premises connected with a railway, who counts as an officer or agent of a railway company and how far a FTT is allowed or required in criminal injuries compensation cases to consider a point like the possible application of paragraph 8(c) here when the claimant has not specifically relied on it or put forward the evidence necessary for its determination..
14. For all of these reasons we dismiss Ms Withey’s application to the Upper Tribunal.
CICA (Clive Bishop)
15. Mr Bishop was a taxi driver. On 25th February 2007 he was asked to pick up a young female, Ms Palmer. She was drunk. He did so and dropped her off at the arranged address. At 4.30am on the following morning Mr Bishop was arrested at his home by police officers on suspicion of having raped Ms. Palmer. He was questioned, subjected to various tests and then released on police bail after 12 hours. He said that he was in a state of shock at the accusation. He was worried about what Ms Palmer might have told her family and friends and feared retribution from them. DC Hooper who had been assigned to deal with Mr Bishop reported that Mr Bishop said that he had been traumatised. DC Hooper agreed that Mr Bishop had reasonable grounds to feel nervous about reprisals. In due course the police were satisfied that Ms. Palmer’ss allegation was false and no charges were brought against Mr Bishop. Ms. Palmer was charged with perverting the course of public justice. She pleaded guilty on 2nd June 2008 and was sentenced to 10 months in a Young Offenders Institution.
16. Among the findings of fact of the FTT sitting on 13 May 2009 were the following:
‘c) Ms Palmer made an allegation of rape in an intoxicated and distressed state in the early hours of 25 February 2007.
d) The allegation had been made to the police.
e) The police had considered the allegation to have sufficient foundation to arrest the applicant.
f) The applicant was arrested by the police on the suspicion of rape as soon as was reasonably practicable after the allegation was made (at about 4.30am).
g) The applicant felt immediately violated by the allegation which manifested in symptoms namely inability to sleep, anxiety, stress and fear.
h) In respect of the applicant’s fear, he feared immediate reprisals and that he would be attacked.
i) The Applicant was put in reasonable fear of immediate physical harm.
j) This was directly attributable to the false allegation of rape made by Ms. Palmer
k) The Applicant was released on bail after about 12 hours of questioning and tests.’
In paragraphs 47 and 48 the FTT included the following in the facts it considered relevant:
`47…[I]n Ms Palmer making the false allegation of rape it must have been natural for her victim, the applicant, to regard the application as malicious and she must have intended to cause the applicant harm. …
48. Ms. Palmer had made the allegation in a drunken state soon after the applicant had dropped her off at her home. She was a young woman on her own and combined with the fact that she was intoxicated meant that she was in a particularly vulnerable position that evening. The gravity of her allegation was such that even if she did not foresee what the applicant would have thought and experienced, the Tribunal found that she was reckless in her actions.’
17. The FTT correctly identified the two issues before it: whether the act of Ms Palmer constituted a crime of violence; and whether Mr Bishop was put in reasonable fear of immediate violence. The FTT answered both questions favourably to Mr Bishop.
18. As to the first question, Ms Palmer had been convicted of a crime – perverting the course of justice. There are obvious difficulties in characterising that as a ‘crime of violence’ and it is not altogether clear as to whether the FTT did so. We will return to this matter shortly. However, before the FTT and before us Mr Yell, on Mr Bishop’s behalf, emphasised that the FTT’s attention ought not to be confined to the charge which was actually prosecuted. We agree. It is a proposition which is clearly supported by paragraph 10 of the Scheme which says that it is not necessary for the assailant to have been convicted of an offence. In this case, Mr Yell submitted, Ms Palmer had also committed the crime of assault against Mr Bishop. Since the FTT clearly did accede to this submission we need to examine a little more closely how this argument was made.
19. The FTT recalled that the Ireland case (see above) confirmed that an assault does not require actual violence. As soon as Mr Bishop was arrested by the police his immediate fear was that Ms Palmer’s partner would seek him out and assault him. DC Hooper had said this fear was realistic. Ms. Palmer, a teenager, had made the allegation in a drunken state and been in a vulnerable position. The FTT added ‘The gravity of her allegation was such that even if she did not foresee what the applicant would have thought and experienced, the Tribunal found that she was reckless in her actions.’ Accordingly, the FTT found that she had recklessly committed an assault that evening by delivering her accusation in distressed state to the police who would inevitably take the allegation seriously as would those closest to her. A little earlier in its decision the Tribunal had said that it considered that a reasonable man considering the particular facts of the appeal would expect an award to be made.
20. On behalf of the CICA, Mr Collins argues that the FTT’s reasoning betrays a number of legal errors.
a. While words (or even silence) may constitute an assault, as the Ireland case made clear, it is essential that the act of the defendant puts the victim in fear of immediate physical violence. Mr Bishop was not present when Ms Palmer made her allegation to the police. He first learned of the accusation when the police came to his house. He was then arrested. As long as he was in police custody, he could not be said to be at risk of physical attack from Ms. Palmer’s partner or any of her other friends or family. The exact amount of time that he would be in police custody would be unpredictable at the moment of arrest, but it was not reasonably open to the Tribunal in this case to conclude that the interval would be so short that any apprehended revenge attack on Mr Bishop could be characterised as ‘immediate’.
b. An assault can be committed intentionally or recklessly. However, to establish recklessness it must be shown that the defendant actually foresaw that his (or her) act would cause harm – see R v Savage, DPP v Parmenter  1 AC 699 at 751. The FTT had commented, ‘The gravity of her allegation was such that even if she did not foresee what the applicant would have thought and experienced, the Tribunal found that she was reckless in her actions.’ This showed that it was adopting a test of recklessness different from that laid down by the House of Lords. If she did not foresee what the applicant would have thought and experienced, it is hard to see how she could have intended to cause him this harm, contrary to the FTT’s finding in paragraph 47.
c. The FTT’s further comment that a reasonable man considering the facts of this appeal would expect an award to be made was a misunderstanding of the guidance in the case law. The Tribunal appeared to be alluding to what Lawton LJ had said in R v Criminal Injuries Compensation Board ex parte Webb  1 QB 74 at p. 78,
‘It follows, in my judgment, that the court should not construe the scheme as if it were a statute but as a public pronouncement of what the government was willing to do. This entails the court deciding what would be a reasonable and literate man’s understanding of the circumstances in which he could under the scheme be paid compensation for personal injury caused by a crime of violence.’
But the test there postulated was not simply whether a reasonable man would expect an award to be paid. Rather it was whether a reasonable man would understand that what had occurred amounted to personal injury caused by a crime of violence.
21. Mr Yell defended the FTT’s decision. He argued:
a. Whether it was apprehended that physical injury would happen ‘immediately’ was a question of fact and degree. In Ireland Lord Steyn had contemplated that a telephone caller who said to a woman in a menacing way ‘I will be at your door in a minute or two’ could be guilty of assault because he would have caused her to apprehend immediate physical violence. Questions of fact are matters for the FTT and cannot be reopened on a judicial review type application. Besides, the nature of the offence for which Mr Bishop had been arrested was such that he could reasonably have apprehended physical violence from other detainees.
b. It would have been the natural and probable consequence of Ms. Palmer’s allegation that the person she accused would fear immediate physical retribution. It was then open to the FTT to conclude that she either intended this consequence or was reckless as to whether it would occur. The Criminal Justice Act 1967 s.8 meant that neither a criminal court (nor the FTT) was obliged to come to that conclusion, but the fact that such a fear was the natural and probable consequence of what she was doing was evidence from which such intention or foresight could be inferred.
c. There was a consistent line of authorities that whether what had occurred amounted to a ‘crime of violence’ was a jury question and not a term of art – see for instance R v Criminal Injuries Compensation Board ex parte Clowes  1 WLR 1353, per Lord Widgery C.J. at p. 1364; Webb (above) at p. 79 and R (August) v Criminal Injuries Compensation Appeals Panel; R (Brown) v Criminal Injuries Compensation Appeals Panel  1 QB 774 at . The FTT had approached the matter in this way and could not be criticised.
22. In our view, the arguments of Mr Collins for CICA prevail. While it is a question of fact in the context of the requirements for the commission of the crime of assault as to whether the violence which Mr Bishop feared was ‘immediate’, the matter is not completely at large. There must come a point at which a decision maker could not reasonably find that it was. In the context of the criminal process, this boundary may be marked by the judge directing a verdict of not guilty on basis that no reasonable jury could conclude that the apprehended violence was immediate. Here we assume in Mr Bishop’s favour that it is right to treat the police as the agent of Ms Palmer for the purpose of communicating her allegation to him or, to put it another way, that we should ignore the inevitable lapse in time between her making the allegation to the police and his arrest. We also assume in his favour that Ms Palmer meant Mr Bishop to understand that she had repeated the allegation of rape to her partner or family or friends as well as to the police. Even on those assumptions, we do not consider that it was reasonably open to the FTT to conclude that Mr Bishop, when confronted with the police, feared ‘immediate’ physical violence. He was then in the presence of police officers and could expect to be for some time to come. When the FTT found that he feared, ‘immediate reprisals and that he would be attacked’, it could not reasonably have meant that he feared he would be attacked by Ms Palmer’s partner while he was in police custody. If the FTT meant that he feared he would be attacked shortly after his release by the police, it could not have reasonably concluded that this would have been sufficiently ‘immediate’ for Ms Palmer’s accusation to constitute an assault.
23. Mr Yell raised the possibility of Mr Bishop being attacked by other detainees. But this was not a fear which Mr Bishop referred to in his witness statement. There was no finding of fact by the FTT that Mr Bishop feared violence while he was in the custody of the police. If that had been raised, the FTT would also have had to consider whether such a fear was reasonable for the purposes of paragraph 9 of the Scheme.
24. The lack of any reasonable basis for a finding that Mr Bishop feared ‘immediate’ physical injury would be a sufficient ground for concluding that the FTT erred in law in holding that Mr Bishop had been assaulted by Ms Palmer and that the condition in paragraph 9 (a) was met. However, in our view Mr Collins is also justified in his other criticisms of the FTT. Absent a finding that Ms Palmer did foresee that her accusation would cause some physical harm to Mr Bishop, it was not open to the FTT to conclude that she had recklessly committed an assault. The FTT made no such finding and, on the contrary, contemplated that she might not have had this necessary foresight. Likewise, unless Ms Palmer did foresee the harm that her allegation would do to Mr Bishop, the FTT could not rationally find that she intended to produce that result. Furthermore, as Mr Collins submitted, it was not for the FTT to ask itself simply whether a reasonable man would consider that an award should be made. Even if the notion of a reasonable and literate man’s understanding can add anything to the normal approach to the interpretation of the central provisions of a statutory scheme, the test is rather whether a reasonable man would regard what had taken place as personal injury due to a crime of violence. The value to be put on consistency of outcomes in comparable cases points against allowing different FTTs to adopt different interpretations of the legal definitions of crimes or of central provisions of the Scheme on the basis of their individual opinions as to reasonableness, as opposed to the proper exercise of judgment in the evaluation of evidence and the finding of facts and the drawing of conclusions from those findings on the proper legal basis.
25. We return to the matter of the offence for which Ms Palmer had been convicted: perverting the course of justice. As we say, it is somewhat ambiguous as to whether the FTT found this to have been a crime of violence. We tend to think that it did not. Had it done so, it would have been unnecessary to embark on its inquiry as to whether Ms Palmer had assaulted Mr Bishop. In case we are wrong and the FTT did additionally find perverting the course of justice to be a crime of violence, we turn to the question of whether this was a conclusion which was reasonably open to it.
26. Although, as we have noted, the issue of whether a crime is one of violence is said to be a jury question, the case law does give some further assistance which must be applied unless and until the higher courts return to these issues. In Webb the Court of Appeal distinguished between the nature of a crime and its consequences. It gave the example of an offence under the Factories Act 1961 which could lead to the most appalling injuries, but the nature of the offence could not be said to be a crime of violence. The probable consequences may be personal injury (as when a vehicle was left in a dangerous position contrary to what was then s.24 of the Road Traffic Act 1972) but that would not be enough to turn the crime into one of violence. Webb was followed by the Outer House of the Court of Session in LC v Secretary of State for Scotland (1999) Scots CS 114 where Lord Macfadyn said:
‘The question whether a criminal act constitutes a crime of violence is to be answered primarily by looking at what was done, rather than the consequences of what was done...It may be that there are cases in which examination of the actual or probable consequences of the criminal act will cast light on its nature. But it is [not] for the light that they cast on the nature of the criminal act rather than for their own sake that the consequences may be relevant. The attempt to define a crime of violence as any deliberate or reckless criminal act which is reasonably foreseeably likely to cause fear or injury is in my opinion unduly wide, because it places too much emphasis on the nature of the criminal act [we have bracketed the word ‘not’ because in our respectful view, the sentence only makes sense if it is omitted]
The point was repeated in August and Brown when the Court of Appeal at  agreed with the submission that ‘the panel has to look at the nature, and not at the results, of the unlawful conduct.’
27. Applying those criteria to the offence of perverting the course of justice in the present context, we think that the FTT could have come to only one conclusion: it was not a crime of violence. While the consequences of the offence could and did in this case entail a great deal of suffering for the person falsely accused of a dreadful act, the nature of the offence could not reasonably be described as a crime of violence. Nor, in the present circumstances, do the consequences serve to illuminate the nature of the crime itself.
28. Before the FTT and in our hearing a rather different argument was tentatively suggested. If Mr Bishop had suffered harm to his mental health (what in the law of tort used to be called ‘nervous shock’) as a result of being confronted with Ms Palmer’s allegations, might this psychiatric injury not be sufficient to constitute a criminal assault? After all, in Ireland and Burstow the House of Lords held that bodily harm for the purposes of the Offences Against the Person Act 1861 could include psychiatric harm.
29. There are, though, two short answers to this alternative. Firstly, there could only be a crime of assault if Ms Palmer intentionally or recklessly inflicted such harm on Mr Bishop, but in paragraph 24 we have explained why we agree with Mr Collins that the FTT’s findings as to Ms Palmer’s mens rea are unsustainable. Secondly, this alternative would not assist Mr Bishop in showing that paragraph 9(a) of the Scheme was fulfilled. To satisfy that provision he would still need to show that he was put in reasonable fear of immediate physical harm to his own person. As we have said in paragraphs 22 and 24 above, the FTT’s findings in this regard are legally flawed.
30. Mr Yell argued that the FTT could have dealt with this case under paragraph 9(c) of the Scheme as a claim arising out of a sexual offence where Mr Bishop was the non-consenting victim of that offence. We do not think that this assists Mr Bishop. There was no finding of fact by the FTT that any of the offences which Ms Palmer may have committed were sexual offences. That may be because, so far as we can see, this line of argument was not deployed before the FTT. In any case, we think it would have been impossible for the Tribunal rationally to categorise perverting the course of justice as a ‘sexual offence’. Rape of course is a sexual offence, but no such offence was committed and so the injury which Mr Bishop suffered could not have arisen out of it.
31. For all of these reasons, we allow the application of the CICA. We grant a quashing order of the FTT’s decision. Where such an order is made, s. 17(1)(b) of the 2007 Act allows the Upper Tribunal to substitute its own decision for the decision in question. It would only be right for a court or tribunal which is exercising judicial review powers to make such a supplementary order if it considers that there was only one alternative decision to which the body in question could have lawfully come. In our view, that was the situation in the present case. The FTT could not lawfully have concluded on the findings of fact which were reasonably open to it that Mr Bishop’s appeal succeeded. It was then obliged as a matter of law to dismiss his appeal against the refusal of CICA to make him an award. Accordingly, that is the decision which we substitute for the one that the FTT made.
32. At about 2.20 am on 18th January 2005 Mr Jones was driving a gritter lorry north through the Dartford Tunnel. He emerged on the A282 on the Essex side. At that stage the road is a 6 lane dual carriageway linking two sections of the M25. Mr Jones was driving in lane 1. Immediately ahead of him but in lane 2 was an articulated lorry being driven by a Mr Nash. Ahead of both of them was a car parked on the hard shoulder. Its driver, a Mr Hughes, suddenly ran out into the road stood in the path of Mr Nash’s lorry. Mr Nash braked and steered left in an attempt to avoid Mr Hughes, but this was unsuccessful. Mr Hughes was struck and killed. The rear end of Mr Nash’s lorry swerved into lane 1 and Mr Jones’ gritter smashed into it. He suffered very severe injuries as a result. The issue which the FTT had to resolve was whether or not Mr Jones had been injured as a result of a crime of violence.
33. On his behalf, Mr Cooksley QC argued both before the FTT and before us that Mr Hughes had committed two such crimes. The first was inflicting grievous bodily harm contrary to s.20 of the Offences Against the Person Act 1861. The second was interfering with a motor vehicle and thereby causing a danger to road users contrary to s.22A of the Road Traffic Act 1988.
34. The section 20 offence is different from the more serious offence under s.18 of the 1861 Act because s.20 does not require proof of intent to cause grievous bodily harm. Precisely what mens rea was necessary for the s.20 offence was considered by the House of Lords in Savage and Parmenter. Intention or recklessness will suffice. We have already noted that their Lordships held that the defendant must have intended or actually foreseen that his act would cause harm. However, it was not necessary to foresee the precise degree of harm. As Lord Ackner put it at p. 752,
‘it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in s.20, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.’
35. The inquest on Mr Hughes’ death had returned an open verdict, but the FTT had no difficulty in concluding that he intended to commit suicide. In one sense, therefore, he plainly did intend to cause physical harm to some person, namely himself. However, Mr Cooksley did not suggest that that would suffice. We agree. If the defendant intends to inflict unlawful violence on A and by mistake or poor judgment hits B the necessary mens rea for an assault will be established. The defendant’s ‘malice’, as it is sometimes put, can be transferred from A to B. However, since 1961 it has been no crime to attempt to commit suicide. There is no ‘malice’ to transfer from the intended victim of a suicide attempt to an innocent passerby. Accordingly, we agree with the argument put forward to this effect in Archbold, Criminal Pleading Evidence and Practice 2010 edition paragraph 17-24.
36. That did not resolve the matter. The FTT still had to consider whether Mr Hughes intended or was reckless as to the injury which he might cause to other road users. The FTT rejected intention. It said:
‘There is inevitably no evidence available as to the state of mind of Mr Hughes, whose actions caused Mr Jones’ injuries through the mechanism of a highway road traffic accident. The Tribunal found on the balance of probabilities that he ran into the road intending to commit suicide. There was no evidence that he deliberately intended to harm the users of the road.’
37. That left the issue of whether Mr Hughes was reckless i.e. whether he actually foresaw that his actions might cause to physical harm to other road users of whatever degree. The FTT concluded that he did not. It said:
‘The Tribunal accepted the evidence of PC Sexton that probably Mr Hughes’ primary aim was to be certain of causing his own death and that in his experience it was very unusual for a suicide in this manner to cause such extensive personal injuries and damage to vehicles. Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions. However, the Tribunal were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused when he ran out into the dual carriageway, such as to bring his case within s.20 OAPA 1861.’
38. Mr Cooksley’s challenge to this finding is essentially a perversity one. This was a notoriously busy road. The vehicles were travelling at or slightly in excess of the 50mph speed limit. Mr Hughes appears to have selected the articulated lorry to stand in front of. It was glaringly obvious that the driver would seek to avoid an accident and that his actions might cause a collision with vehicles behind. The only possible conclusion was that Mr Hughes must actually have foreseen that such consequences might flow from his actions.
39. We do not accept this submission. The FTT properly directed itself as to the question which it had to consider. Having had their attention drawn to the case of Savage and Parmenter they would have been aware of the feature of recklessness (actual foresight of some harm) which distinguishes it from carelessness or negligence (where foresight is immaterial). There can be no doubt that Mr Hughes’ actions were careless as to the safety of other road users in the sense that a reasonable man would have foreseen the risk of harm to them, but a conclusion of recklessness depended on the FTT finding that he actually foresaw that his behaviour might cause physical harm to others. Making such findings in relation to a person who is dead is a challenging task. However, as Mr Collins reminded us, the burden of proof (albeit to the civil standard of the balance of probabilities) lay on Mr Jones. There were the features of the case which Mr Cooksley emphasised, but it was open to the FTT to consider that Mr Hughes was so focussed on his impending suicide that he was blind to all other circumstances and consequences of his action. A similar view was articulated by the representative of the CICA before the FTT who had submitted, ‘Suicide was not per se a reckless act. An unstable mind should not be considered capable of foreseeing the consequences of what they have done.’ In other words, it could not be reliably inferred from the facts which Mr Cooksley identified that Mr Hughes had had actual foresight of any harm to others on the road. We conclude that the FTT’s finding that Mr Jones had not established that Mr Hughes was reckless was one to which a rational Tribunal could have come. It is not our function to act as an appellate body and substitute our own opinion of the facts even if that would have been different to the Tribunal’s.
40. We are also satisfied that the FTT gave an adequate explanation of its conclusions. The case for Mr Jones on s. 22A of the Road Traffic Act 1998 being rejected, paragraph 38 of the reasons was then central to the rejection of Mr Jones’s appeal. We are satisfied, essentially for the reasons set out in the previous paragraph, that it was sufficiently clear in the context of the reasons as a whole that when in paragraph 38 the FTT concluded that the facts did not demonstrate that Mr Hughes was reckless it was referring to the test as laid down in Savage and Parmenter. On that basis, the FTT had set out an adequate basis to show why it found the evidence lacking in that respect.
41. The FTT then had to address the argument that Mr Hughes had committed the offence under s.22A of the Road Traffic Act 1988 and that this was a crime of violence. This section provides:
‘(1) A person is guilty of an offence if he intentionally and without lawful authority or reasonable cause:-
(a) causes anything to be on or over a road; or
(b) interferes with a motor vehicle ...
in such circumstances that it would be obvious to a reasonable person that to do so would be dangerous....’
42. As to this, the FTT said:
‘The Tribunal was not persuaded that Mr Hughes had committed a crime of violence which was an offence under s.22A of the Road Traffic Act 1988. In their view Mr Hughes could not be described as intentionally and without lawful authority or reasonable cause interfering with a motor vehicle in such circumstances that it would be obvious to a reasonable person that to do so would be dangerous.’
43. In the following paragraphs, the FTT observed that Mr Hughes’ action had not contained a degree of hostile intent. The Webb cases had concerned drivers who had been psychologically damaged by people committing suicide by throwing themselves in front of their trains. The Divisional Court’s view (upheld in the Court of Appeal) was that these were not crimes of violence. The Criminal Injuries Compensation Scheme had subsequently been amended (see paragraphs 8(b) and 9(d)) to cater specifically for such cases, but the amendments were expressly confined to cases of trespass on the railway.
44. We infer from these paragraphs that the FTT rejected Mr Jones’ argument based on s.22A for two reasons: the offence had not been committed, but, in any case, it did not constitute a crime of violence. In order to succeed on this limb of his argument before us, Mr Cooksley needed to show that both conclusions were wrong in law.
45. In our judgment, Mr Cooksley fails on both counts. ‘Interferes’ suggests tampering in some way with a motor vehicle. That was not what Mr Hughes did. He did not tamper or interfere with Mr Nash’s lorry: he stood in its way. Perhaps, more accurately, we are not persuaded that the FTT’s conclusion that Mr Hughes was not guilty of ‘interfering’ was one which they were legally incapable of reaching.
46. Even if we were wrong about that, we consider that it was open to the FTT to find that this was not a crime of violence. The absence of hostile intent is relevant, although not determinative. In rejecting this as a universal test, Buxton LJ in August and Brown at  said,
‘A test in those dogmatic terms is inconsistent with Lawton LJ’s emphasis on the issue being a jury question that turns on all the circumstances. As he said, while there will usually be the infliction or threat of force, that is not a universal requirement.’
We do not consider that the FTT did treat it as a universal requirement. They asked themselves the jury question and answered it in the negative. We also recall that it was Lawton LJ in Webb who said that it was necessary to have regard to the nature of the offence rather than its consequences. He thought it would be absurd if s.24 of the Road Traffic Act 1972 was to be treated as a crime of violence. That provision said,
‘If a person in charge of a vehicle causes or permits the vehicle or trailer drawn thereby to remain at rest on a road in such a position or in such a condition or in such circumstances as to be likely to cause danger to other persons using the road, he shall be guilty of an offence.’
Although there is obviously not a complete overlap with s.22A of the 1988 Act, there are similarities (particularly with s.22A(1)(a)). What is significant, though, is that both sections are directed at behaviour that is likely to cause a danger to other road users. The consequences of both offences may very well include personal injury to those other users. Yet Lawton LJ used the s.24 offence as a paradigm example of an offence which was not a crime of violence. For the same reasons we conclude that the FTT was eminently entitled to decide that s.22A of the 1988 Act did not create a crime of violence.
47. Mr Jones’ application to the Upper Tribunal sought to raise an argument based on legitimate expectation. In April 2007, Anthony Young had been awarded compensation as a result of injuries which he received when he was riding his motor bike and collided with a boy who was running across the road in a game of ‘chicken’. The CICA agreed to pay an award and put out a press release which it was argued generated a legitimate expectation that other road users who were injured by pedestrians could also be successful.
48. By the end of the hearing, it was unclear whether Mr Cooksley was pursuing this as an independent argument. If he was, there are several reasons why it cannot succeed. In the first place, the press release had said that ‘a motorist killed or injured by the reckless actions of a pedestrian could be entitled to compensation [our emphasis].’ A necessary condition for an award was that the pedestrian had been reckless. However, on the findings of the FTT, Mr Jones had not succeeded in showing that Mr Hughes was reckless. Even if recklessness was established, the press release went no further than to say that this could entitle the victim to an award. Secondly, there is force in Mr Collins’ submission that the CICA cannot generate a legitimate expectation to pay awards which are not justified by the Scheme. The CICA does not have a general discretion to pay awards whenever it thinks that reasonable. Its powers are defined and limited by the Scheme. It cannot enlarge them by issuing a press release.
49. In advance of the hearing of this application, the Upper Tribunal directed the parties to consider whether paragraph 11 of the Scheme might anyway have precluded Mr Jones from receiving an award since his injuries derived from the use of a motor vehicle by Mr Nash. In the event, that issue does not arise since we conclude that Mr Jones’ application fails for other reasons.
50. The applications of Ms Withey and Mr Jones are dismissed. The application of the CICA in the case of Mr Bishop succeeds. We have made a quashing order in respect of the FTT’s decision in that case and substitute for it our decision that Mr Bishop’s appeal against the refusal of an award is dismissed.
Signed on the original
Mr. Justice Nicol
His Honour Judge Sycamore CP
Upper Tribunal Judge Mesher
11 June 2010