Upper Tribunal (Administrative Appeals Chamber)

Judicial Summary

Criminal Injuries - Compensation Authority- whether compensation payable to a person conceived and born with serious genetic disability as result of incestuous rape-whether injuries suffered directly attributable to a crime of violence

Y who was born with a serious genetic disorder resulting from his conception and birth as a consequence of an act of incestuous rape, claimed compensation under the Criminal Injuries Compensation Scheme 2008. The Criminal Injuries Compensation Authority (‘CICA’) refused the claim on the grounds that Y was not a victim of a crime of violence and that his congenital condition had arisen as a result of the relationship between his parents and not of the assault itself. The First-tier Tribunal dismissed Y’s appeal and concluded that as he had never had an uninjured state and had not suffered injury within the terms of the scheme. On an application for judicial review, the Upper Tribunal granted his application for relief, concluding that Y had “in common parlance” suffered injuries which were directly attributable to a crime of violence within the meaning of paragraph 8 of the 2008 scheme and so was entitled to compensation thereunder. The CICA appealed.

Held, allowing the appeal, that:

1. issues of entitlement to compensation under the Criminal Injuries Compensation Scheme 2008 were to be determined by reference to the proper construction of the scheme which, being governed by section 1 of the Criminal Injuries Compensation Act 1995, had to be read in accordance with the normal principles of statutory construction;

2. on the facts, the victim of the crime of violence could only have been Y’s mother;

3. to suggest that Y, who had not been conceived at the time of the crime, was himself a victim of crime (the nature of the crime involved being difficult to discern) or that it was possible to assess compensation on the postulate that Y would otherwise have been born without disability and so should be compensated for the genetic disorder from which he suffered, went beyond that which the scheme sought to cover.

The court set aside the decision of the Upper Tribunal (AAC) and upheld the decision of the First-tier Tribunal.