Upper Tribunal (Administrative Appeals Chamber)

[2011] AACR 11

(R (SB) v First-tier Tribunal (CIC) [2010] UKUT 250 (AAC))

Judge Mesher JR/1294/2009

21 July 2010

The claimant made a claim under the Criminal Injuries Compensation Scheme 2001, stating that she had suffered an unprovoked assault in a named cinema and had reported the assault to a police officer. The police description of the incident recounted that, before the film had started, she began to blow a whistle if people talked or used a mobile telephone. Under paragraph 13(d) of the Scheme, a claims officer of the Criminal Injuries Compensation Authority (CICA) may withhold or reduce an award where he considers that the conduct of the claimant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made. A claims officer made a decision that an award could not be made under the Scheme, because it would be inappropriate in view of the information from the police showing that the claimant’s conduct had provoked the incident. The claimant applied for a review of that decision, saying that the police description bore no relationship to the true sequence of events. On review the claims officer said that there was conflicting evidence, but not enough to be satisfied that the claimant’s conduct did not contribute to what happened, so that a full or reduced award of compensation would be inappropriate under paragraph 13(d). The claimant appealed. The tribunal disallowed the appeal on the basis that it was satisfied that the weight of the available evidence was that the applicant had acted in an unusual, unreasonable and provocative manner, that it was her behaviour that had brought about the incident in question and that “accordingly” it was unable to make any award. The claimant applied to the Upper Tribunal for judicial review. When giving permission to appeal, the Chamber President of the Administrative Appeals Chamber (AAC), “without limiting the grounds that may arise”, drew attention to a number of points, including whether the tribunal had failed to ask the right question. It was part of CICA’s submission that that ground should not be considered, as it had not formed an express part of the case made for the claimant.

 

 Held, allowing the application and quashing the decision of the First-tier Tribunal, that:

1.                   the mere identification of a number of grounds on which permission is granted or on which submissions are directed, without a formal limitation of the giving of permission to those specific grounds, does not exclude the consideration of any issue that is relevant to the question of whether one of the orders specified in section 15(1) of the Tribunals, Courts and Enforcement Act 2007 should be made and, in order to ensure that the correct result in law is reached, issues may be raised by the AAC itself at any stage, subject always to the principles of natural justice (paragraph 15);

2.                   the tribunal’s use of the word “accordingly” indicated that it regarded the decisive test as whether the claimant’s behaviour had brought about the incident in question, which was not to ask the question in the terms of paragraph 13(d), but to ask a different question that was apparently regarded as conclusive and so to fetter its very wide discretion (paragraph 17);

3.                   R v Criminal Injuries Compensation Board, ex parte Comerford, 19 June 1980, is authority that the occurrence of unforeseeably severe consequences of violence is irrelevant to paragraph 13(d), but it is no authority at all on a situation where a claimant’s conduct is provocative not of the very blow that followed, but of no violent reaction at all or of a reaction of a lower degree of violence than actually occurred and the tribunal and CICA are entitled to take into account when assessing appropriateness that some degree of violent reaction could have been anticipated, but the actual reaction (as opposed to the consequences of that reaction) was out of proportion to what was expected (paragraphs 27 to 30);

4.                   it cannot be said that applying that approach  must have produced the same outcome as that reached by the tribunal asking itself too restricted a question, as there was plainly an argument for the claimant that no matter how annoying, disruptive and provocative the actions that the tribunal found she carried out were, they could not reasonably have been expected to result in a reaction of violence (paragraph 31);

5.                   in the light of the importance now given to the adequacy of reasons as an element of a fair trial, nothing in R v Criminal Injuries Compensation Board, ex parte Cook [1996] 1 WLR 1037 can be allowed to take anything away from the standard of reasons required of a First-tier Tribunal and  the tribunal’s reasons here did not come up to the standard required by those general principles as re-stated in South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953, as there needed to be some further explanation of why the nature of the claimant’s conduct made it inappropriate for something less than a full award to be made (paragraph 35);

6.                   if a tribunal wishes to rely on the way similar cases have been dealt with in the past as part of the explanation for a conclusion on inappropriateness (not as a substitute for such a conclusion) it needs to say so expressly (paragraph 37).

The judge remitted the case to a differently constituted First-tier Tribunal within the Social Entitlement Chamber for reconsideration.

DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)

 

The application for judicial review is allowed. The Upper Tribunal makes an order quashing the decision of the First-tier Tribunal dated 19 March 2009 (statement of reasons dated 24 April 2009) and remits the applicant’s appeal against the review decision of the claims officer dated 20 February 2008 to a differently constituted First-tier Tribunal within the Social Entitlement Chamber for reconsideration (Tribunals, Courts and Enforcement Act 2007, sections 15(1)(a) and 17(1)(a)).

 

REASONS

 

1. The application for judicial review is made with the permission of the President of the Administrative Appeals Chamber (AAC) of the Upper Tribunal, Mr Justice Walker, given on 7 December 2009 on reconsideration at an oral hearing. Following the making of written submissions, an oral hearing was directed, which took place at Victory House, Kingsway, on 5 July 2010. The applicant, who from now on I shall call the claimant, did not attend, but was represented by Mr William Valentine, who describes himself also as the claimant’s carer. The interested party, the Criminal Injuries Compensation Authority (CICA), was represented by Mr Jeremy Johnson of counsel, instructed by the Treasury Solicitor. The respondent, the First-tier Tribunal, had indicated in its acknowledgement of service of the application for permission that as a tribunal it did not intend to make a submission and has taken no part in these proceedings. I am grateful for the helpful oral submissions made on 5 July 2010. I have also considered the short written submission produced by Mr Valentine before the hearing, and a copy of one decision relied on by Mr Johnson and Mr Valentine’s comments in response, both delivered later on the day of the hearing.

 

2. This, like many in the criminal injuries compensation jurisdiction, is an unhappy case. In part because several issues of fact will be in dispute before the new tribunal to which I have remitted the case (including the accuracy of the police records and the adequacy of their investigation) I shall only set out enough of the factual background here to enable the basis of my decision to be understood.

 

3. The claimant is a lady born in December 1946. She has a very long-standing neurological or personality disorder that I do not need to go into. Her claim for compensation under the Criminal Injuries Compensation Scheme 2001 was made on 17 August 2006. On the claim form, which appears to have been completed by her then solicitors, although of course signed by her, she said that she had been assaulted in a named cinema at 7.30 pm on 18 February 2006 and had reported the assault to a police officer (PC Poulter) at 9 pm at Limehouse Police Station. The details of the incident were set out as follows:

 

“1. I was sitting in the cinema waiting for the film to start.

  2. My assailants pushed past me and sat next to me in the same row.

  3. The female assailant began to fidget in her seat and put her legs up.

4. I noticed that the female’s drink was insecure and I tried to hand it to her so that it did not fall over.

5. This caused the female to start a commotion with her partner. Without warning, her (male) partner proceeded to beat me up in full view of everyone else in the cinema.

6. He punched me twice, once in the eye and once in the mouth. He pulled my hair out by its roots while pulling me to the floor and along the aisle.

7. I shouted for help, before the assailants ran out of the cinema.

8. I asked the manager to call 999 but the manager refused.”

 

The claimant stated that the sight in her right eye had been damaged. She had seen her GP and had attended Moorfields Eye Hospital.

 

4. A CICA questionnaire completed in her GP’s practice on 23 October 2006 stated that shortly after joining the practice in May 2006 the claimant attended complaining of low visual acuity in the right eye following an assault and was referred to Moorfields, where she had been diagnosed with right posterior vitreous detachment and asymmetrical disc cupping. A questionnaire completed on behalf of the Metropolitan Police on 20 September 2006, obviously after reference to records, gave the time of being informed of the incident as 21.40. The injuries noted were a cut to the upper lip and pain in the mouth. This was written in the box for a brief factual description of the incident:

 

“Victim was at cinema to watch a film. Victim began to blow a whistle before the film had started if people began to talk or use their mobile phones. A couple sat next to the victim took exception to the whistle blowing and a disagreement took place, one of the couple poured drink over the victim and the other the suspect leant over and punched the victim in the face.”

 

After a request for further details, the following was added in a letter dated 13 February 2007:

 

“[T]he manager of the cinema was spoken to (name not recorded) and he stated that your client was causing a lot of problems and continued to blow her whistle after she was told not to and was therefore asked to leave the cinema.

Please note there are no statements from any witnesses or staff from the cinema concerning this incident.”

 

5. On the basis of that evidence, a CICA claims officer made a decision notified in the letter dated 12 March 2007 that an award could not be made under the Scheme, because, in view of the information from the police (set out in the letter) showing that the claimant’s conduct had provoked the incident and paragraph 13(d) of the Scheme, it would be inappropriate in all the circumstances to make a full or reduced award of compensation. Paragraph 13(d) and (e) provide:

 

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

 

…

 

(d) the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made; or

 

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

 

6. The claimant applied for a review of that decision, saying that the police description bore no relationship to the true sequence of events and that she had not been guilty of any sort of conduct that provoked the assault on her. She accepted that she had been in possession of a police whistle that she carried when in public places to call for help if ever in difficulties, but stated that she only used it on 18 February 2006 when already under attack. The claims officer’s decision on review, notified in the letter dated 20 February 2008, was the same. It was said that there was conflicting evidence, but not enough to be satisfied that the claimant’s conduct did not contribute to what happened, so that a full or reduced award of compensation would be inappropriate under paragraph 13(d).

 

7. The claimant appealed against the review decision on 4 March 2008. She included various documents to do with her continuing medical treatment for eye problems. At that point her solicitors ceased to be able to assist her. As part of the process she sent in to CICA with a letter dated 25 April 2008 several further documents in support of her application and of her continuing medical problems that she linked to the incident. Among them was a much more detailed statement about the events of 18 February 2006, both in the cinema and in the police station. The claimant stated there that she had blown the whistle once before the film started and while the lights were still up (after which the manager came to enquire) but that the assailants did not take their seats until after that as the lights were going down.

 

8. The claimant did not attend the First-tier Tribunal hearing on 19 March 2009, but had authorised Mr Valentine to represent her, which he did. There was a presenting officer from CICA and PC Poulter gave evidence in person. It is plain from the notes made by the members of the tribunal, produced at the direction of the Chamber President, that there was a thorough investigation subject to the inevitable limitations that neither PC Poulter nor Mr Valentine had any direct knowledge of what had happened in the cinema.

 

The tribunal’s decision

 

9. The tribunal disallowed the appeal. The statement of reasons signed by the presiding tribunal judge on 24 April 2009 set out the issues for decision in paragraph 8 as whether the assault sustained by the claimant:

 

“was as a result of her own provocative and unusual behaviour in a cinema, blowing a whistle whenever anyone in the cinema hall spoke and whether therefore her conduct was an issue.”

 

Paragraphs 11 and 12, under the heading of reasons, were as follows:

 

“11. The reasons for the Decision were that the Panel was satisfied that the weight of the available evidence was that the Appellant had acted in an unusual, unreasonable and provocative manner in the cinema. The Panel were unable to accept the Appellant’s written submissions in relation to the incident; there was no evidence that the police had `fabricated evidence against the Appellant’, as she had stated at document A13. The Panel was unable to accept the Appellant’s statement that she did not blow the whistle to disturb anyone in the cinema. The Panel was satisfied that the blowing of the whistle in a cinema in the circumstances described by the police officer, was an unjustified and provocative behaviour and that, had the Appellant not done that, there would not have been confrontation between herself and the couple sitting next to her.

 

12. In coming to this decision the Panel wishes to emphasise that there is no justification for anyone to assault another person. However, paragraph 13(d) of the Scheme obliges the Panel to look at the behaviour of the Appellant and the Panel was in no doubt that it was the Appellant’s behaviour which brought about the incident in question. Accordingly, and in such circumstances, the Panel was not able to make any award, full or reduced, in such circumstances and the appeal was therefore disallowed.”

 

10. The tribunal’s findings of fact had been set out in paragraph 10 of the statement. In general the tribunal accepted PC Poulter’s evidence of the state the claimant had been in when she arrived at the police station and that she had no apparent serious injury, even bleeding from the mouth, otherwise an ambulance would have been called despite the claimant having declined the offer to do so. The most significant sub-paragraph was this:

 

“g. Mr Valentine confirmed some of the Appellant’s history and medical difficulties and that it was possible for her to exaggerate situations. He indicated that normally she would not go out by herself because of the possibility of getting herself into difficult situations. Mr Valentine re-emphasised the Appellant’s version of events, which was that she only blew her whistle in the cinema, because other people were spoiling her enjoyment. He also stated that the Appellant had maintained that the couple next to her (including the man who assaulted her) did not come into the cinema until after the whistle-blowing had stopped. This had not been borne out by the police officer and the Panel was not able to accept that evidence. The panel was satisfied that the interaction between the Appellant and her assailant had occurred solely as a result of her disruptive behaviour;”

 

The application for judicial review

 

11. When giving permission to the claimant to apply for judicial review the Chamber President on 7 December 2009 drew attention to three points, “without limiting the grounds that may arise”:

 

“(1) On the first point originally identified by Judge Rowland, the Comerford case is not authority for the proposition that the severity of injury is irrelevant. It merely holds that where the applicant effectively asked for trouble, the seriousness of the injury suffered by the applicant will not assist if injuries of such severity could not reasonably have been foreseen as the result of the conduct of the assailant.

 

 (2) On the second point originally identified by Judge Rowland, it is not clear to me that in paragraph 10g of their reasons the tribunal addressed the right question.

 

 (3) Moreover, I am concerned whether the First-tier Tribunal made adequate findings of fact as to what occurred in the cinema and afterwards, and whether this was a suitable case in which to consider paragraph 13(d) of the scheme without making detailed findings of fact as opposed to merely recounting what was said by a police officer who did not witness the attack.”

 

12. The references there to points originally identified by Judge Rowland were to some observations attached to directions dated 4 June 2009 given before permission to apply for judicial review was refused on the papers. The first point was whether, if the claimant had indeed suffered a serious eye injury as a result of the assault, it would be disproportionate to withhold the entirety of any award on account of the type of behaviour the tribunal had found that she had engaged in. CICA then relied on the decision of the Divisional Court in R v Criminal Injuries Compensation Board, ex parte Comerford, 19 June 1980 (discussed further below) in opposing the application for permission in its acknowledgement of service. The second point was whether paragraph 13(d) should be applied with caution when a claimant’s behaviour may have been due to mental illness. In a later direction dated 4 February 2010 the Chamber President directed that CICA’s written submissions should in the first instance deal with points (1) and (3) in the reasons given on 7 December 2009, leaving point (2) to be investigated only if necessary after the other points had been determined. Thus, before me there has been no discussion of the second point identified by Judge Rowland.

 

13. I have concluded that the tribunal made errors of public law that require its decision to be quashed. The two essential, linked, errors were failing to ask itself the right question, that is whether the claimant’s conduct made it inappropriate to make a full or any award of compensation to the claimant, and failing to give adequate reasons for the decision.

 

Did the tribunal ask itself the right question?

 

14. Mr Johnson submitted for CICA that this ground should not be considered, as it had not formed an express part of the case made for the claimant and, in so far as it had been identified by the Chamber President when giving permission to apply for judicial review, had been taken out of the matters for primary consideration by his later directions of 4 February 2010.

 

15. I do not accept that submission. First, the Chamber President explicitly stated when giving permission that his drawing of attention to particular points was not to limit the grounds that could be considered. Second, even if he had not done so, the mere identification of a number of grounds on which permission is granted or on which submissions are directed from the respondent or interested party, without a formal limitation of the giving of permission to those specific grounds, does not exclude the consideration of any issue that is relevant to the question of whether one of the orders specified in section 15(1) of the Tribunals, Courts and Enforcement Act 2007 should be made. The procedure before the AAC in such cases does not operate on the basis that issues to be considered are limited to those raised in a formal way by the parties or as crystallised at a certain stage. The principle is, as in the jurisdictions inherited by the AAC from the Social Security and Child Support Commissioners, to seek to ensure that the correct result in law is reached. To that end, issues may be raised by the AAC itself at any stage, subject always to the principles of natural justice (especially the right of the parties to a fair opportunity to make out their case and to deal with issues that might go against them). Thus, in the present case I regard the issue of whether the tribunal had asked itself the proper question under the Scheme as bound up in, or perhaps a general expression of, the concerns raised by the Chamber President when giving permission to appeal. The nature of the test under paragraph 13(d) was plainly part of those concerns and Mr Johnson was not put at any significant disadvantage at the oral hearing in making submissions about that slightly different way of describing the concerns, which had in substance already been covered in his written grounds for opposing the claim.

 

16. The Chamber President’s direction of 4 February 2010 does not make any difference. That direction must be understood by particular reference to what Judge Rowland had been raising in his second point, whether the test in paragraph 13(d) of the Scheme should be applied with caution when a claimant’s behaviour might have been due to mental illness. What the Chamber President was excluding from immediate consideration were points that might involve discussion of the present claimant’s particular mental health problems. His exclusion of Judge Rowland’s second point was not fairly to be read as excluding the wider considerations he had expressly included on 7 December 2009. And even if it could have been read in that way, it would not have prevented the point being raised at the hearing of 5 July 2010 and being determined after the parties’ representatives had had a fair opportunity to consider it.

 

17. The substance of the ground stems from the way in which the tribunal expressed its conclusion in paragraph 12 of its statement of reasons. There was an express reference to paragraph 13(d) as obliging the tribunal to look at the claimant’s behaviour. But the tribunal followed its conclusion that it was the claimant’s behaviour that brought about the incident in question by saying that accordingly it was not able to make any award, full or reduced. That on the face of it indicates that the tribunal regarded the decisive test as whether the claimant’s behaviour had brought about the incident in question. That was not to ask the question in the terms of paragraph 13(d), but to ask a different question that was apparently regarded as conclusive (“not able to make any award”). In my judgment, the tribunal did not properly ask itself whether in the circumstances of the particular case before it it was inappropriate to make any award to the claimant. Mr Johnson submitted that, since the tribunal had actually set out paragraph 13(d) in full in paragraph 7 of the statement as well as referring to it in paragraph 12, it was inconceivable that such a specialist and highly experienced body had not applied its terms. He said, in an argument that overlaps with the reasons ground discussed below, that all that was missing from the statement was a sentence at the end to the effect that therefore it was inappropriate to make an award and that that was necessarily to be implied from a reading of the whole of the statement. Its findings that the claimant’s behaviour had been unreasonable, disruptive and provocative supplied the reasons why it was inappropriate to award her any compensation. I disagree. That was not the direction of the tribunal’s reasoning as expressed in the statement.

 

18. I also, for the reasons given below, reject Mr Johnson’s submission that, if the test actually applied by the tribunal was as above, it was in practice equivalent to the statutory test so that the difference in approach was not material or, to put it another way, that it had not improperly fettered its own very wide discretion under paragraph 13(d) by adopting a more restricted rule. It is necessary for this purpose to look with some care at the authorities relied on for CICA to support the tribunal’s decision.

 

19. The first is Comerford, where I suspect the emphasis on “provocative” behaviour comes from. In that case, the claimant for compensation had been head-butted by an assailant, Spong, in a public house. The immediate results of the head-butt were only a black eye and a small cut, but it also caused the claimant to fall, hitting his head on something, fracturing his skull and severely damaging the brain. The then Criminal Injuries Compensation Board refused to award compensation on the basis that Spong had acted in self-defence, so that there had been no unlawful assault on the claimant. On judicial review, the Divisional Court accepted that the Board had been entitled to make that decision on that factual basis. But the Board had gone on to say that, even if it found that Spong had not been acting in self-defence, it would have withheld any award under a provision of the then non-statutory scheme that incorporated both the present paragraph 13(d) and 13(e). That appears to have been on the basis that the claimant, who had been drunk, had been goading and grabbing Spong, betting him £50 that he could not put him out of the pub. The Board importantly rejected a submission that in determining whether it was inappropriate to make a full or reduced award regard should be had to the severity of the claimant’s injuries. It took the view that if in two cases the claimants’ conduct had been the same, the result under the equivalent of paragraph 13(d) should not be affected by the chance of whether the consequence turned out to be serious or trivial and continued:

 

“In our view, this is not the correct approach; the proper approach is to look at the conduct of the parties, both in their words and actions and not to have regard to the consequences of the blow which caused the injury, although, of course, we have regard to the nature of the blow.”

 

The Board concluded that, even if a crime of violence had been committed against the claimant, “his conduct … was of so provocative a nature as to render it inappropriate to make an award of compensation”.

 

20. Lord Lane LCJ agreed with those words of the Board and continued:

 

“They pose the question, put in colloquial terms, ‘Did the applicant ask for it?’, in the sense that he asked to get hit, though of course he did not ask to get his skull fractured or his brain damaged. But the latter were the unforeseen and unforeseeable results of the blow which was ‘asked for’. In those circumstances it seems to me that one has to ask why it was that the applicant got hit. If he has got hit because ‘he asked for it’, then that is a situation which the Board is entitled to take into account in either rejecting or reducing his claim, regardless of the unforeseeable and appalling circumstances which have in this case arisen.”

 

21. Comerford was obviously a very extreme case on the facts. It may be that in some future case it will have to be considered whether the approach to severity of consequences there was right and whether the practice of refusing an award under paragraph 13(d) before it has been ascertained what sort of award the claimant would otherwise be entitled to is right, although it was expressly approved by Buxton J in R v Criminal Injuries Compensation Board, ex parte Hopper, unreported, 7 July 1995. That is in effect Judge Rowland’s first point. However, I do not think that it is necessary to address that point. What seems to me to be important about Comerford is that the claimant there asked for the very blow that he received. When the Board talked of his behaviour being of so provocative a nature as to render it inappropriate to make an award of compensation it was necessarily talking of behaviour that was provocative of a violent reaction. As the Chamber President suggested on 7 December 2009, the case is authority that in such circumstances the occurrence of unforeseeably severe consequences is irrelevant to paragraph 13(d). But in my judgment, it is no authority at all on a situation where a claimant’s conduct is provocative not of the very blow that followed, but of no violent reaction at all or of a reaction of a lower degree of violence than actually occurred.

 

22. The second case relied on is R v Criminal Injuries Compensation Board, ex parte Thompstone and Crowe [1984] 1 WLR 1234. This was one of the many cases about the effect of criminal convictions under the equivalent of paragraph 13(e) of the current Scheme. But Sir John Donaldson MR made this general statement about the provision which at the time incorporated also the equivalent of the present paragraph 13(d), at 1239A–D:

 

“It seems to me to be clear that paragraph 6(c) contemplates that circumstances can arise in which it would be ‘inappropriate’ that the public purse should be used to compensate a victim – when it could not reasonably be expected to be used for that purpose. It then restricts the considerations which can be taken into account in judging of inappropriateness to two broad categories which are disjunctive. The first is ‘the conduct of the applicant before, during or after the events giving rise to the claim’, and in such a case the conduct will usually have some ascertainable bearing on the occurrence of the injury or its aftermath, although I do not want to be taken as deciding that it must do so. The public servant who before or after the event embezzles public funds might well not be thought to be an appropriate recipient of public bounty, although that would depend upon the circumstances and be a matter to be considered by the board. The second is ‘the character and way of life’ of the applicant, where it is much less likely that this will have any ascertainable bearing on the occurrence of the injury, but again may be such that the applicant would not be thought to be an appropriate recipient of public bounty.

 

In each case, although different categories of circumstances can be taken into account, the issue is the same. Is the applicant an appropriate recipient of an ex gratia compensatory payment made at public expense? As with all discretionary decisions, there will be cases where the answer is clear one way or the other and cases which are on the borderline and in which different people might reach different decisions. The Crown has left the decision to the board and the court can and should only intervene if the board has misconstrued its mandate or its decision is plainly wrong.”

 

23. What Mr Johnson sought to take from those observations, as well as from other cases, was first that the terms of paragraph 13(d) gave CICA and on appeal the tribunal the widest possible discretion. He submitted that that did not depend on whether the Scheme was ex gratia (as it was until 1996) rather than on a statutory basis, with a draft laid before Parliament for approval, but turned essentially on the interpretation of paragraph 13(d) and (e) and its combined predecessors and in particular the wide scope of the word “inappropriate”. Thus, if terms like “public bounty” might seem now rather outmoded in relation to a statutory scheme defining rights to compensation, that does not affect the width of the discretion. What he sought to take second was that the considerations to be taken into account were restricted to the claimant’s conduct under paragraph 13(d) or character and way of life under paragraph 13(e). Mr Johnson submitted that the consequences of the claimant’s conduct were therefore irrelevant. He said that the tribunal here had been entitled in its discretion to conclude that the claimant’s conduct had sufficiently caused or contributed to the incident that it would be inappropriate to award her any compensation and that an argument that, on the facts as found by the tribunal, punching her in the face was a completely disproportionate response to her conduct was beside the point. He did not shrink from the submission that if here the claimant’s assailant had stabbed her fatally or shot her instead of “merely” punching her that would have made no difference to the outcome.

 

24. Mr Johnson found further support for that second point in the judgment in Hopper, which specifically rejected a submission that under the “character as shown by criminal convictions” limb there had to be a balancing out of the nature and seriousness of the claimant’s convictions against the seriousness of the injury. However, I am not at all sure how far that in itself takes him forward. Buxton J expressly distinguished between convictions cases and conduct cases, accepting that in the latter the conduct and the nature of the injury could be intimately intertwined and that the engagement of the claimant in the incident should not be treated as an automatic reason for disqualification from an award. On the other hand, those observations were partly based on the decision of Sedley J in R v Criminal Injuries Compensation Board, ex parte Gambles [1994] PIQR P314, which in its turn was overruled by the Court of Appeal in R v Criminal Injuries Compensation Board, ex parte Cook [1996] 1 WLR 1037, but mainly on the standard of reasons required. In the light of all those factors Hopper perhaps raises more questions than answers.

 

25. Mr Johnson finally referred in his written grounds of 12 February 2010 to paragraph 17 of Part 4 of CICA’s Guide to the 2001 Scheme, issued under paragraph 22 of the Scheme, which requires the Guide to explain procedures for dealing with applications and to set out, where appropriate, the criteria by which decisions will normally be reached. It appears to be generally agreed, as explained in Padley and Begley, Criminal Injuries Compensation Claims, paragraph 7.11.1, that CICA and previously the Board could not fetter its discretion by the terms of the Guide. That must in my view be right, especially as the power is only to set out “normal” criteria. And even more so, a Guide produced by one party to proceedings before the First-tier Tribunal cannot be allowed to fetter any discretion to be exercised by that tribunal under the statutory Scheme.

 

26. It is worthwhile, especially since I suspect this is where the emphasis on causing or contributing to the incident came from, setting out the whole of paragraphs 15 to 17 of that part of the Guide:

 

“15. Under paragraphs 13(d) and 14 of the Scheme, if your own behaviour caused or significantly contributed to the incident in which you were injured, we will normally refuse or reduce an award.

 

 16. These are some examples of situations where we may refuse or reduce an award:

 

• If your injury was caused in a fight in which you had voluntarily agreed to take part, even if the fight turns out to be much more serious than you had expected. If you invited someone to `come outside’ for a fist-fight, we will not usually award compensation, even if you ended up with the more serious injuries. The same is likely to apply if you chose to accept such a challenge by the offender. The fact that the offender went further and used a weapon will not normally make a difference.

 

• If, without good cause, you struck the first blow, regardless of how seriously you were hurt when the person fought back.

 

• If the incident in which you were injured formed part of a pattern of violence in which you took part voluntarily, for example, if there was a history of assaults involving both sides and you had previously attacked the other person.

 

• If you were injured while trying to get revenge against the person who attacked you.

 

• If you had drunk too much alcohol or used illegal drugs and this had contributed to the attack which caused your injury (paragraph 14 of the 2001 Scheme says that we must consider this issue specifically).

 

• If you used offensive language or gestures, or behaved in an aggressive or threatening way, which led to the attack which caused your injuries.

 

 17. We may refuse an award even if the person who attacked you is convicted of a violent crime. His or her actions may have been entirely unreasonable and this may justify the conviction. But this does not necessarily mean that you were blameless, and if you own behaviour caused or contributed to the incident, we are likely to refuse or reduce an award.”

 

By way of general context, paragraph 1 of Part 4 stated:

 

“Compensation for an injury caused by a violent crime is an expression of public sympathy and support for innocent victims. The original Scheme, introduced in 1964, said that people with significant criminal records, or whose own behaviour led to them being injured, or who failed to co-operate in bringing the offender to justice, would not receive compensation from public funds. The conditions have continued in each Scheme since then.”

 

27. I find nothing in the authorities relied on for CICA to alter the view in [17] above. Indeed, the emphasis on the width of the discretion in paragraph 13(d) of the Scheme rather reinforces the need for a tribunal not to fetter that discretion by adopting some alternative rule of thumb. And looking at the terms of the Guide to the Scheme tends to suggest that the tribunal here applied the “caused or significantly contributed to the incident” approach as such a rule of thumb, rather than merely as a suggestion of what would normally follow subject to the exercise of the general discretion under the test of inappropriateness. I also suspect that it operated on the basis, perhaps derived from paragraph 17 of the Guide, that if a claimant caused the incident all compensation would be refused and if a claimant contributed to the incident compensation would at least be reduced, which would have been a further element of fettering of discretion.

 

28. Nor can I accept that the rule actually applied by the tribunal could not have led to any materially different outcome from a proper exercise of the wide discretion in paragraph 13(d) as understood in the light of the case law. I have already explained why the decision in Comerford is not of any direct assistance to CICA in the circumstances of the present case. So far as the other decisions mentioned above go, I proceed on the assumption that they show that paragraph 13(d) does not allow any general balancing out of the nature of a claimant’s conduct against the seriousness of the injury and other consequences. That assumption (which does not so far as I am aware rest on authority at the level of the Court of Appeal) may need reconsideration in some future cases. It does appear to put a lot of weight on Sir John Donaldson MR’s use in Thompstone and Crowe of the notion of what were then the two parts of paragraph 6(c) “restricting” the considerations that can be taken into account. It is not clear to me that that necessarily excludes consideration of all the circumstances of the case. However, for present purposes I need only focus on the sort of conduct whose relevance can only come from it having “some ascertainable bearing on the occurrence of the injury or its aftermath”, in Sir John Donaldson’s words.

 

29. In that context I find great difficulty with an approach purely in terms of causation of or contribution to the incident in question. It is notorious that the application of the concept of causation has led to great difficulties and complications in many areas of law, which I hope can be avoided in relation to the Scheme in its successive versions, which should wherever possible be capable of being understood and applied in its own terms without reference to any sophisticated overlay of interpretation. But to approach a case by asking, as the tribunal here seems to have done, whether the incident would not have happened “but for” something done by the claimant does not in itself take matters much further forward. The “but for” test can helpfully exclude matters that are causally irrelevant, but leaves in the equation a great many matters that will not be relevant in the context of paragraph 13(d). For instance, in what I suspect is a substantial proportion of criminal injuries compensation cases it could be said that the incident resulting in injury would not have happened but for the claimant’s conduct, in the sense of unluckily being in the wrong place at the wrong time. If in the present case the evidence accepted was that the claimant had gone to the cinema and done nothing out of the ordinary, being attacked out of the blue, that in a sense could not have happened if she had not sat in the seat she did, but that could not conceivably be regarded as conduct which made a full award of compensation inappropriate. As Buxton J said in Hopper, the engagement of a claimant in the incident cannot be treated as an automatic reason for disqualification from compensation. There must therefore be consideration of what it is about the claimant’s conduct that could make it inappropriate to award full compensation. Paragraph 17 of Part 4 of the CICA Guide must be read in the context of Part 4 as a whole subject to that qualification.

 

30. In that respect, I do not see how it is possible to avoid consideration of what consequences in terms of violence could possibly be expected to follow the claimant’s conduct. The examples given in paragraph 16 of Part 4 of the CICA Guide of circumstances in which compensation might (not definitely would) be refused or reduced are instructive. They are all circumstances in which the person has done something that any reasonable person would realise could result in a violent reaction of some kind and that was blameworthy or reprehensible in some way. In such circumstances, it can be proper (subject always to the overriding consideration of appropriateness) to ignore the fact that the reaction went beyond what might reasonably have been foreseen or that the ultimate consequences of the expected reaction were much more serious than could reasonably have been foreseen. It may be dangerous to talk in terms of a crucial line beyond which it is not possible rationally to conclude that it is inappropriate even to reduce compensation, rather than of a continuum on which the case for refusal or reduction becomes weaker and weaker. If there is such a line it would I think mark off the case where no reasonable person could have foreseen a reaction of violence of even the mildest degree or where no element of blame of any kind could be attached to the claimant. But until that line is reached, the question ultimately has to be one of judgment and discretion applying the criterion of inappropriateness of the award of compensation out of a scheme funded by the taxpayer at large. For that reason, it seems to me that tribunals, and of course CICA, are entitled to take into account when assessing appropriateness that, if this is the case, some degree of violent reaction could have been anticipated, but the actual reaction (as opposed to the consequences of that reaction) was out of proportion to what was expected. The weight of that factor would of course vary considerably according to the extent of the lack of proportion. As the Board put it so many years ago in Comerford, while not having regard to the consequences of the blow that caused the injury, “we have regard to the nature of the blow itself”.

 

31. Applying that general approach to the present case, it cannot be said that it must have produced the same outcome as that reached by the tribunal asking itself what I have decided was too restricted a question. Here, the circumstances as found by the tribunal were not near either end of the continuum. Looking at the examples in paragraph 16 of Part 4 of the Guide for an analogy, the use of offensive language or gestures would appear to be the closest, but of course even the Guide does not suggest that refusal or reduction of compensation would follow in all such cases: the guidance is still in terms of “may”. There was plainly an argument for the claimant here that no matter how annoying and disruptive and provocative the actions that the tribunal found she carried out were, they could not reasonably have been expected to result in a reaction of violence. They could have been expected to result in some protest and perhaps some offensive verbal reaction, plus the obvious alternative of calling for the management to sort out the situation, but not a reaction of physical violence. Even if some pushing and shoving could reasonably have been expected, it could have been argued (as Mr Valentine did before me) that two immediate punches to the face were totally out of proportion to the provocation offered. I am not of course saying that in those circumstances it could not have been decided that it was inappropriate for a full or any award to be made, merely that there was an open question whether or not that was so. That was then a question that could only be answered in terms of inappropriateness and not in terms merely of whether the claimant had caused the incident. Therefore, the error of law of asking the wrong question through improperly restricting the tribunal’s discretion cannot be dismissed as having made no material difference to the outcome.

 

Did the tribunal give adequate reasons for its decision?

 

32. The conclusion above is sufficient to require the quashing of the tribunal’s decision, but if I am wrong in that conclusion I nevertheless conclude that the tribunal failed to give adequate reasons for its decision. Thus even if it was concluded that the tribunal had in substance asked itself the right question and had not improperly fettered its discretion, or that any such errors had been immaterial to the outcome, in my judgment the tribunal failed to explain the essence of its decision.

 

33. Before coming to the details of the statement of reasons, I must deal with the decision of the Court of Appeal in Cook (cited in [24] above), which was the decision produced by Mr Johnson after the oral hearing. I find some of what was said in the decision rather troubling. It is an odd case because a great deal of the two judgments was devoted to overruling what Sedley J had decided in Gambles, and in particular the suggestion that in paragraph 13(d) cases the Board (this was a pre-CICAP case) ought to go through a three-stage process, and show in its reasons that it had done so. The three stages were to ask whether the claimant’s conduct made a full award inappropriate; if so, to what extent did the conduct impact on the appropriateness of the award; and what, if any, award should the claimant consequently receive. Sedley J also suggested that the Board had to demonstrate that its conclusion had been reached by an appropriate process of reasoning from the facts. In rejecting all of those suggestions some apparently very broad statements were made. For instance, Hobhouse LJ said at [1996] 1 WLR 1051C that judicial review “is concerned with the propriety and validity of the decision, not with the quality of the articulation of the reasons”. Yet at the end of his judgment he referred to the classic statements of the general required standard of adequacy of reasons, that they must be intelligible, deal with the substantial points that have been raised and in broad terms tell each party why they have lost or won. Thus, especially when considering a decision of a judicial body such as the tribunal here and in the light of the importance now given to the adequacy of reasons as an element of a fair trial, the first statement of Hobhouse LJ cannot be allowed to take anything away from the standard of reasons required of a First-tier Tribunal, even if only considering paragraph 13(d) cases, by those general principles. Similarly, when Aldous LJ said at 1045B that it was not incumbent on the Board to demonstrate in its reasons that its conclusion had been reached by an appropriate process of reasoning from the facts, that must be read in the particular context of the case and of what propositions were being rejected and in the light of the judge’s acceptance of the general principles already mentioned. What was being rejected was first the suggestion that the Board had to go through the three-stage approach and second that there should be an explanation in a case of complete refusal of an award of why on the facts found a mere reduction of the award not appropriate. In my judgment, it was the apparent requirement in all such cases of the setting out of such a process of reasoning that was in issue. The rejection of that requirement is not to be taken as undermining the applicability of the general principles accepted. It cannot exclude the requirement to set out an appropriate process of reasoning from the facts when that is necessary to meet those general principles.

 

34. Further, in so far as Hobhouse LJ suggested at [1996] 1 WLR 1051B – D that reasons might only be inadequate in failing to set out a process of reasoning when the decision itself gave rise to some inference of irrationality or impropriety that therefore needed rebuttal, that seems inconsistent with the more recent and frequently cited statement of Lord Brown of Eaton-under Heywood in South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at [36] which, while accepting that the degree of particularity of reasons required depends entirely on the nature of the issues falling for decision, included this:

 

“The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant [planning] policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn.”

 

35. In fairness to Mr Johnson, he did not in producing the report of Cook after the hearing draw attention to any of the elements of the judgments which I have suggested have only limited relevance to other cases, but to the statements of general principle. In my judgment the tribunal’s reasons here did not come up to the standard required by those general principles as re-stated in Porter. The reasons left substantial doubt whether the tribunal had erred in law by asking itself the wrong question and fettering its discretion, but if (contrary to my conclusion above) that was not material to the outcome, any inadequacy of reasons would not in itself have justified quashing the tribunal’s decision. However, in order for the claimant and her representative to understand why they had lost the appeal, there needed to be some further explanation of in what way the tribunal found the claimant’s behaviour provocative, in the sense explained above of giving rise to some expectation of a violent reaction. The finding that the claimant had caused the incident did not in itself explain why the claimant lost (I am ignoring what seems to me the irrational finding at the end of paragraph 10g of the statement that the interaction between her assailant and her had occurred solely as a result of her disruptive behaviour, as inconsistent with other findings). In these particular circumstances there needed to be some further explanation of why the nature of the claimant’s conduct made it inappropriate for something less than a full award (if the other conditions for qualification were met) to be made. The reference to provocative and disruptive behaviour was not enough by implication to provide an explanation. That was not put in terms of the proper test of inappropriateness or of whether or not any reasonable person could have expected a violent reaction to the behaviour.

 

36. This is I think in essence the same point as (3) in the Chamber President’s grant of permission. His concern was whether the tribunal had made sufficiently detailed findings of fact about what happened in the cinema and afterwards. It is simply that I have looked at the point as being that, if the tribunal had made what findings it could on the limited evidence before it, it failed adequately to explain why on those findings what the claimant had done made it inappropriate to award her any compensation.

 

37. Mr Johnson did at one point suggest that as the Board, the Criminal Injuries Compensation Appeal Panel and now the First-tier Tribunal had traditionally taken a very strict line on what sort of conduct made it inappropriate to make any award of compensation, and as the claimant had been made aware that her account of the facts had been rejected (the main element of her argument to the tribunal), there was little need to say more by way of explanation. I fear that that was dangerously near to accepting that the tribunal had fettered its discretion. But more fundamentally, if there had been such a long-standing approach it would not be within the knowledge of an ordinary claimant. Although consistency of decision-making and like cases being treated alike is a good thing, if a tribunal wishes to rely on the way similar cases have been dealt with in the past as part of the explanation for a conclusion on inappropriateness (not as a substitute for such a conclusion) it needs to say so expressly. Claimants are entitled not to have to read between the lines on the decisive issue in their cases.

 

38. Another part of point (3) of the grant of permission was whether it had been adequate for the tribunal merely to recount what had been said by a police officer who did not witness the attack, rather than make detailed findings of fact. There was a difficulty for the tribunal in that the evidence of the police officer about what happened in the cinema, which was found not to have borne out the claimant’s case, was not based on any direct evidence of his own or on detailed accounts given by other witnesses, but mainly on what was recorded and what he remembered about being told by the claimant on the evening in question. So the issue was really, if it was accepted that the police officer had no motive for misstating what had gone on in the police station, the inconsistency of the accounts given by or on behalf of the claimant at different times. However, the tribunal did not set that out on the face of its statement or say in so many words that it did not believe the claimant’s account. Mr Johnson accepted that if the tribunal had in effect operated on a general basis that a police officer was to be believed in preference to a claimant that would have been an error of law, but submitted that that had not been so. He submitted that the tribunal was not required to unpick every inconsistency or implausibility in a person’s evidence and in the circumstances of the present case had done enough by indicating in paragraph 11 of the statement that the weight of the evidence was against the claimant’s account of the events. Fortunately this particular point is not decisive. On balance, although the statement of reasons could have been better and more fully expressed on this point, it was adequate to allow the claimant to know in substance why her account as finally put to the tribunal was not accepted.

 

 

Conclusion

 

39. For the reasons given above, the decision of the tribunal of 19 March 2009 must be quashed. In the circumstances, the claimant’s appeal against the claims officer’s review decision of 20 February 2008 must be remitted to the First-tier Tribunal for reconsideration afresh in accordance with the principles of law set out above (in particular in [17] and [27] to [30]). None of the members of the tribunal of 19 March 2009 is to be a member of the new tribunal. At the oral hearing on 5 July 2010 Mr Valentine expressed the opinion that the claimant might be persuaded to attend a new hearing with him. I am sure that the new tribunal would be greatly assisted if it could hear from the claimant in person and ask her questions about the incident. I stress to the claimant and her representative that the success of this application for judicial review does not necessarily mean that her appeal against the review decision of 20 February 2008 will be successful. And even if the claimant were to succeed on the paragraph 13(d) point, there might be further obstacles to the making of an award of compensation. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal. The conclusion on the facts in this case is still open.