Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/1043/2010

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is a claim by the Criminal Injuries Compensation Authority (CICA), brought with my permission, for judicial review of a decision made by a First-tier Tribunal on 4 February 2010. For the reasons set out below that decision was in my judgment wrong in law and I quash it and substitute the decision which the First-tier Tribunal ought to have made, namely to dismiss JC’s appeal against CICA’s decision of 14 April 2009.

 

Introduction

2. CICA’s decision of 14 April 2009 was one refusing to alter on review its earlier decision of 18 December 2008, whereby it made an award of criminal injuries compensation of £4350 in favour of JC. The compensation was in respect of injuries sustained by JC in an incident on 10 February 2005 when her ex-husband forcibly penetrated her mouth with his penis. Of that sum of £4350, £3300 (level 7) was in respect of an injury considered by the decision maker to fall under the category “indecent assault – severe - non-penile penetrative and/or oral-genital act or acts” in the 2001 Compensation Scheme Tariff. (I shall refer to that category of injury in the 2001 Scheme as “the lower category”).

 

3. JC appealed against that decision, contending that the appropriate category should have been “non-consensual vaginal and/or anal intercourse – by one attacker”, which involved an award of a standard amount of £11,000 (level 13), to which would have been added the additional £1050. (I shall refer to that category of injury in the 2001 Scheme as “the higher category”). That contention was based on the fact that with effect from 1 May 2004 the Sexual Offences Act 2003 had extended the definition of rape so that it included non-consensual penile penetration of not only the vagina and anus, but also the mouth. However, the wording of the higher category was not brought into line with this until the Criminal Injuries Compensation Scheme 2008 was enacted. The 2008 Scheme applies to applications received by CICA on or after 3 November 2008, and so did not govern this case. (JC’s application had been made on 12 November 2006).

 

4. The First-tier Tribunal accepted JC’s contention and allowed the appeal. Its reasons included the following:

 

“6. It was submitted to us that any right thinking minister, member of Parliament or member of the public would consider it manifestly unjust that after the enactment of the Sexual Offences Act 2003 a victim of oral rape should be treated so differently as to be awarded compensation of less than a third of that awarded to victims of vaginal or anal rape. We agreed.

 

7. It was submitted to us that secondary legislation cannot always keep up with the clear intention of Parliament as demonstrated by its primary legislation and that we could and should give effect to that clear intention by giving a purposive interpretation to existing secondary legislation. We agreed and accordingly we interpreted the 2001 Scheme as allowing a level 13 award for non-consensual penile penetration of the mouth. We therefore awarded the sum of £11,000 for this injury.”

 

5. I held on oral hearing of CICA’s claim for judicial review of the First-tier Tribunal’s decision. At that hearing CICA was represented by Mr Jeremy Johnson of counsel, instructed by the Treasury Solicitor, and JC was represented (as she had been before the First-tier Tribunal) by Miss Helen Law of counsel, instructed by Fisher Meredith LLP.

 

Relevant legislation

6. As far as I am aware this is the only case to which my decision can be material. I do not therefore propose actually to set out the terms of even the immediately relevant legislation. However, the following statutory provisions should be treated as incorporated in this decision.

 

The Criminal Injuries Compensation Act, 1995 (“the 1995 Act”) sections 1, 2 and 11.

 

The Criminal Injuries Compensation Scheme, 2001 (“the 2001 Scheme”), paras. 1, 6, 23, 26, 27, 28 and 29.

 

The Sexual Offences Act 2003 (“the 2003 Act”), sections 1, 2 and 5.

 

The Sex Discrimination Act 1975 (“the 1975 Act”), sections 1, 21A, and 51A.

 

Submissions on behalf of JC

7. Although CICA is the applicant for judicial review, it is convenient to start by summarising the submissions put forward by Miss Law on behalf of JC as to why the First-tier Tribunal’s decision should be upheld. I do not propose separately to summarise Mr Johnson’s submissions because for the most part I accept them, and they are therefore to a large extent incorporated in my analysis and conclusions below. I summarise Miss Law’s submissions (I hope accurately) under A to G below.

 

A(1) The essence of CICA’s function is to compensate victims of crime for the criminal injury they have suffered: see especially sections 1 and 2(2)(a) of the 1995 Act. It is inherent in that function that there be a correlation between seriousness of the injury as categorised by the criminal law and the compensation paid by CICA. The 2001 Scheme was created with the purpose of giving effect to the intention of the 1995 Act.

 

(2) The extension of the definition of “rape” by s.1 of the 2003 Act was reached following extensive consultation and review conducted in 2000 by the Home Office, as a result of which it was concluded that:

 

“The present crime of rape is limited to the penile penetration of the anus and vagina. Forced oral sex is treated as an indecent assault. We thought that inappropriate. Forced oral sex is as horrible, demeaning and as traumatising as other forms of forced penile penetration, and we saw no reason why rape should not be defined as penile penetration of the anus, vagina or mouth without consent.” Setting the Boundaries: Reforming the law on sex offences, July 2000, Home Office, para. 2.8.5.

 

(3) The Home Affairs Committee took a similar view when it came to consider the Sexual Offences Bill in July 2003, and noted that it was logical to group all forms of non-consensual penile penetration within the same offence. The Government Reply to the Home Affairs Committee’s report said:

 

“The Government welcomes the Committee’s support for this provision. Our decision to include forced oral penetration within the scope of the rape offences is based on the weight of very persuasive evidence submitted to the Sexual Offences Review by victims and victim support groups.

 

From the perspective of victims, forced penile penetration of the mouth can be just as abhorrent, demeaning and traumatising as other forms of forced penile penetration and is equally, if not more, psychologically harmful than vaginal and anal rape.

 

Broadening the scope of the rape offence in this way ensures that legislation properly reflects the seriousness of the offence of forced oral penetration and its effects on the victim.” Cm 5986, pp. 1-2.

 

 (4) The amendments made in this respect by the 2008 Scheme were made in order to maintain consistency with the criminal law. The explanation for the change given by the Parliamentary Under-Secretary of State for Justice when laying the 2008 Scheme before Parliament was:

 

“We have changed some of the descriptions of awards for sexual offences to bring them into line with terminology from the Sexual Offences Act 2003 and ensure consistency with current law. We have inserted some new categories and made other changes to rectify inconsistency.” House of Commons Delegated Legislation Committee, 14 July 1998, Col 5.

 

B. The meaning of the relevant categories in the 2001 Scheme, even read as at 2001, was not clear. In particular, there was room for argument whether penile penetration of the mouth fell within the words “non-penile penetrative and/or oral-genital act or acts.” That there was that inclarity in the 2001 Scheme is demonstrated by the fact that, under the 2008 Scheme, those words are not intended to include penile penetration of the mouth.

 

C. The definition “non-consensual vaginal and/or anal intercourse” in the 2001 Scheme was to the same effect as the then definition of rape in s.1 of the Sexual Offences Act 1956. The intention was to align that category of injury with the statutory definition of rape. The 2001 Scheme should be interpreted in the same manner as if this category had been expressed simply as “rape”. Had that been done, the meaning would have changed with the change in the statutory definition of rape.

 

D. The 2001 Scheme must be read in the light of section 11(3) of the 1995 Act, which uses the term “rape”, indicating that the statutory definition of rape should apply for the purposes of the 201 Scheme. That became even clearer after the insertion, by the 2003 Act, of s.11(9) of the 1995 Act, which refers specifically to the definition of rape in sections 1 and 5 of the 2003 Act. 

 

E. Reliance is placed on the following principles of statutory construction:

 

(a) That a purposive construction will, if possible, be applied. In this connection the points under A above are particularly relied upon.

 

(b) “The intention of the legislature, as indicated in the outline (that is the enabling Act) must be the prime guide to the meaning of delegated legislation ……” Bennion on Statutory Interpretation, 5^th ed (2008), p.262. Again, the points under A above are relied upon.

 

(c) “It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law.” Bennion, Section 288(2) (p.890). Reliance is placed, in particular, on the following passage from the speech of Lord Bingham in R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687:

 

“8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute.  ………………………………..

 

9. There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking. ………………..The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language: see Bennion ……Section 288. A revealing example is found in Grant v Southwestern and County Properties Ltd [1975] Ch 185, where Walton J had to decide whether a tape recording fell within the expression “document” in the Rules of the Supreme Court. Pointing out, at p.190, that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that the tape recording was a document.”

 

(d) “It has always been a principle of the interpretation of statutes that the courts should seek to construe them so as to produce a just and fair law”: Stanley Burnton J in R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] 1 WLR 2930, para. 33.

 

F. If penile penetration of the mouth does not fall within the words “non-consensual vaginal and/or anal intercourse”, then it may not have been covered by the 2001 Scheme at all, because it may not have fallen within the lower category either. In that event, CICA should have operated the procedure in paras. 28 and 29 of the 2001 Scheme.

 

G. Rape is an offence which has a disproportionately greater number of female victims than male victims. The 2009 British Crime Survey records 12,165 offences of rape committed against females and 968 against males. Accordingly, a failure to properly categorise and compensate victims of rape will have a disproportionate impact upon females and therefore constitutes discrimination against a woman, within the meaning of s.1(2) of the Sex Discrimination Act 1975. Such discrimination on the part of CICA was rendered unlawful by s.21A(1) of the 1975 Act.

 

Analysis and conclusions

8. As at the date of enactment of the 2001 Scheme it was perfectly clear that the words “non-consensual vaginal and/or anal intercourse” did not include penile penetration of the mouth. I do not understand Miss Law to dispute that. On that footing, it was in my judgment equally clear that the appropriate category for penile penetration of the mouth was “indecent assault- severe – non-penile penetrative and/or oral-genital act or acts”. There was no other appropriate category, and (notwithstanding the availability of the procedure in paras. 28 and 29 of the 2001 Scheme) it would have been absurd if no category applied at all.  

 

9. In my judgment the only possible question is then whether, having regard to the equivalence between the category “non-consensual vaginal and/or anal intercourse” and the then (i.e. as at 2001) statutory definition of rape, it is permissible in effect to read those words as meaning ““rape”, as defined by statute”. In other words, did the relevant part of the 2001 Scheme display an intention that if the statutory definition of rape were altered, the meaning of what I have called the higher category should change with it?

 

10. In my judgment it is clear that the higher category was deliberately framed by reference to the essential ingredients of the offence of rape, as then statutorily defined, but without any intention that any change in the statutory definition should automatically apply for the purposes of the higher category. My reasons for that conclusion are as follows.

 

11. First, if the intention had been that the higher category should automatically be updated to take account of any change in the statutory definition of rape, it would have been very easy expressly to draft the higher category in a form which made that intention clear, and it is likely that that would have been done. There was in 2001 every possibility that the statutory definition of rape would be altered. The definition had previously been altered as recently as 1994 (by s.142 of the Criminal Justice and Public Order Act 1994), so as to include penile penetration of the anus, and by 2001 the 2000 review, recommending the further extension to penetration of the mouth, had of course already been undertaken. We are not dealing with a change which was unforeseeable in 2001.

 

12. Secondly, it is in my judgment very unlikely that it would have been considered sensible to provide, in advance, that any alteration in the definition of rape should necessarily lead to a change in the meaning of the higher category. The purposes of the statutory definition of the criminal offence of rape are clearly not the same as the purposes of the Criminal Injuries Compensation Scheme. For example, two possibilities which were considered (but rejected) by the review conducted in 2000 were (i) extending the definition of rape so as to include all forms of sexual penetration (para. 2.8.4 of the 2000 review report) and (ii) grading rape into lesser and more serious offences (para. 2.8.6 of the 2000 review report). It would have been highly unsatisfactory to specify in advance that any alteration of the definition of the offence of rape should automatically lead to a change in the meaning of the higher category.

 

13. Thirdly, there was no reason why it should have been considered necessary or desirable to attempt to legislate in advance in this way. There would have been no difficulty in amending the 2001 Scheme tariff in the light of any amendments in the criminal law. Consideration of what amendments to make was in any event likely to be necessary. For example, s.2 of the 2003 Act, adopting the recommendation of the review in 2000, in fact created a separate offence of assault by penetration, which, like rape, carries a maximum penalty of life imprisonment. It would in any event have been necessary to consider whether any amendment was desirable in order to take that into account. (In fact, under the 2008 Scheme, penetration with parts of the body other than the penis, or with an object, still falls within the lower category, attracting compensation at level 7, £3300).

 

14. Fourthly, the fact that s.11(3) of the 1995 Act refers to “rape” did not in my judgment indicate that the higher category was intended to change its meaning with any change in the statutory definition of “rape”. Section 11 was a provision relating to the mechanics for alteration of the compensation scheme. If anything, the fact that the word “rape” was used in s.11(3), but not in the wording of the higher category, highlights that the higher category was intended to be defined primarily by reference to the then (i.e. as at 2001) constituents of the offence of rape.

 

15. I was not referred by either counsel to section 17(2) of the Interpretation Act 1978, which provides:

 

“Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears –

 

(a) any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provision re-enacted;

 

(b) ………………………………………………………”

 

16. By s.140 of and Schedule 7 to the 2003 Act, section 1 of the Sexual Offences Act 1956 Act was repealed. However, s.17(2) of the 1978 Act did not of course apply in the present case, because the higher category did not refer to s.1 of the 1956 Act in terms. Even if the higher category had been defined as ““rape” within section 1 of the Sexual Offences Act 1956”, however, it would have been strongly arguable that the 2003 Act displayed an intention that that reference to s.1 of the 1956 Act should not become treated as a reference to s.1 of the 2003 Act. I note that in Schedule 6 to the 2003 Act great care appears to have been taken expressly to replace all references in previous statutes to s.1 of the 1956 Act with references to s.1 of the 2003 Act. (Although, as to the significance of such an exercise in relation to whether a contrary intention is displayed for the purposes of s.17 of the 1978 Act, see R v Corby Juvenile Court, ex p. M [1987] 1 WLR 55).

 

17. Mr Johnson argued that in any event one cannot regard the wording of the higher category in the 2001 Scheme as equivalent to rape, within the meaning of s.1 of the Sexual Offences Act 1956, because there were differences between the meanings of the two provisions. These differences, however, if they existed at all, appear to have been very subtle, and I prefer not to rely on that reasoning.

 

18. Once one concludes, as I do, that the 2001 Scheme did not display an intention that the meaning of the higher category should change with any amendment to the statutory definition of rape, that is in my judgment the end of the matter. As I have said, it is quite clear that as at 2001 the higher category did not and was not intended to include penile penetration of the mouth. None of the statutory canons of construction on which Miss Law relies can assist.

 

19. Even if one were to accept (which I do not) Miss Law’s submission that it was not wholly clear whether penile penetration of the mouth fell within the lower category, that would not assist JC. It does not help her to show some possible inclarity in the lower category. JC needs to show that her case falls within the higher category.

 

20. But in any event, I do not consider that there was any real doubt as to whether non-consensual penile penetration of the mouth fell within the lower category. In my judgment it was clear that it did. The fact that non-consensual penile penetration of the mouth does not fall within the lower category in the 2008 Scheme, because it expressly falls within the higher category, does not demonstrate that there was inclarity in the 2001 Scheme. Any statutory provision must be interpreted in the light of the other provisions in the same piece of legislation.

 

21. The amendments made by the 2003 Act to s.11 of the 1995 Act do not in my judgment assist Miss Law. S.11(3) of the 1995 Act provides that before making any alteration to the Tariff as to …… “(d) compensation payable in respect of children conceived as a result of rape” the Secretary of State shall lay before Parliament a draft of the provision as proposed to be altered. The 2003 Act amended s.11 so as to add a new sub-clause (9), as follows:

 

“In subsection (3) “rape”, in relation to anything done in England and Wales, means an offence under section 1 or 5 of the Sexual Offences Act 2003 ……”

 

22. In my judgment that amendment be taken as having amended the higher category in the 2001 Scheme so that it became aligned with the new definition of rape. Section 11(9) of the 1995 Act is expressly and clearly concerned only with defining the word “rape” as it appears in s.11(3), which is concerned only with the procedure for amending the 2001 Scheme. In addition, as Mr Johnson points out, the extension in the definition of rape to include penile penetration of the mouth, made by the 2003 Act, is in fact irrelevant in the context of s.11(3), because of course a child cannot be conceived as a result of rape by mouth.

 

23. As regards the contention that the procedure in paragraphs 28 and 29 of the 2001 Scheme should have been invoked, that applies only where “[CICA] considers that any description of injury for which no provision is made in the Tariff is sufficiently serious to qualify for at least the minimum award under this Scheme”. As I have said, it is in my judgment clear that penile penetration of the mouth was provided for, by the lower category. But even if that were regarded as not wholly clear, none of the principles of construction invoked by Miss Law would have the consequence that one should lean in favour of construing the 2001 Tariff as not providing for non-penile penetration of the mouth at all (thus requiring the paras. 28 and 29 procedure to be employed). Rather, those principles would cause one to lean in favour of construing the 2001 Tariff so that non-penile penetration of the mouth was within the lower category.

 

24. In my judgment the Sex Discrimination Act 1975 does not assist Miss Law, for a number of reasons. First, the only substantive provision which she relies upon is s.21A, relating to discrimination (in any field) by public authorities. Miss Law relied on the definition of discrimination in s.1(2) of the 1975 Act. However, it seems to me that the relevant definition is that in s.1(1): see s.1(3). It does not seem to me that the application by CICA of the lower, as opposed to the higher, category in the 2001 Scheme can possibly fall within s.1(1). CICA is not applying to a woman a requirement or condition which applies equally to a man but “which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it.”  We are simply not in that territory.

 

25. Secondly, the substantive provision in s.21A is that it is unlawful for a public authority exercising a function to do any act which constitutes discrimination. However, by s.21(4) that prohibition does not apply to the functions and actions listed in the Table of Exceptions in subsection (9). The exceptions include “action which is necessary …… for the purpose of complying with …. [delegated legislation].” Applying the provisions of the 2001 Scheme therefore would not have constituted unlawful conduct by CICA, even if it had involved discrimination.

 

26. Further, by s.51A nothing in the relevant provisions in Part III of the Act (which includes s.21A) shall render unlawful any act done by a person if it was necessary for that person to do it in order to comply with a requirement of an existing statutory provision.

 

27. Miss Law submitted that the 2001 Scheme should be construed in such a way that its provisions do not give rise to unlawful discrimination under the 1975 Act. However, even if, contrary to my view, the construction of the 2001 Scheme which I have adopted involves sex discrimination for the purposes of the 1975 Act, the meaning of the 2001 Scheme is in my judgment too clear to permit of the construction contended for by Miss Law.

 

Costs

28. Mr Johnson indicated at the hearing that, in the event of it succeeding in this judicial review claim, CICA would not wish to apply for an order that JC pay its costs of the claim. However, JC’s solicitors had written to the Treasury Solicitor indicating that even in the event of CICA’s claim succeeding JC, who is funded by way of legal aid, would apply for an order that her costs of the judicial review claim be paid by CICA. I indicated at the hearing that any such application should be made in writing. It should be made within 21 days from the date of issue of this decision, stating reasons.

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

18 February 2011