M, R (on the application of) v Criminal Injuries Compensation Panel

MR JUSTICE NEWMAN: This application for judicial review raises a short, interesting and important point as to eligibility under the Criminal Injuries Compensation Scheme. In order to set the scene, I shall set out the facts in brief.

The claimant was born on 23rd March 1971. On 22nd January 1972 he was received into care by the London Borough of Islington and was for a short time placed in a children's home. On 12th February 1972 the local authority assumed parental rights over the claimant. On 12th November 1973 he and his sister, who had also been taken into care, were placed with foster parents, Mr and Mrs H. A few months afterwards, on 13th March 1974, the claimant was taken to hospital by Mr and Mrs H. He was unconscious and he was suffering from a subarachnoid haemorrhage, gross retinal haemorrhages and a large midline frontal bruise. Medical opinion was that he had suffered a non-accidental injury.

Mr and Mrs H gave a number of different explanations for his injuries, but contemporaneous documents suggest that Mr H shook the claimant severely after he had wet the bed. It was the opinion of the doctors that it was non-accidental, expressed by Mr King, the consultant neurosurgeon, in these terms:

Another consultant, the consultant ophthalmic surgeon, thought the injuries due to severe shaking or swinging the legs of the child. He was returned from the hospital to Mr and Mrs H and in October of the same year he was taken to hospital again suffering from non-accidental injuries; on this occasion, bruising to the stomach. On a third occasion, in December 1974, he was again taken to the hospital suffering from non-accidental injuries, on this occasion a fractured left elbow. After this third occasion he was removed from the care of Mr and Mrs H and then placed in a series of children's homes.

It is unnecessary to go into the consequences of these injuries. They are very well documented and they were all before the Criminal Injuries Compensation Appeal Tribunal, but in short this young man's life, as a result of the injuries he sustained and no doubt the plight in which he was from the beginning, have led to very unhappy consequences. I am informed that at the moment he is presently sectioned under the Mental Health Act. I should say that in these circumstances, any reporting of this case or any mention of this case should be without any information, or fact, or reference which would identify him and he should be known as M.

The procedural course with which I am concerned is that in 1990 he made a claim for compensation from the Criminal Injuries Compensation Board. For administrative reasons, the claim was not in fact dealt with until 11th April 1994 when, on an application before Miss Beryl Cooper QC, there was an interim award made of £10,000 and the application was referred to a board of at least two members. In October 2000, some 6 years later, there was a hearing, I am told by counsel, Miss Harris, who has appeared for him today, that he appeared unrepresented. It resulted in an award of £100,000. Thereafter, solicitors applied to have that award set aside, not because they wanted the award to be set aside, but because they considered that £100,000 was insufficient and he was entitled to more compensation.

It can be noted that, unlike the tariff arrangements which exist under the modern system, the assessment of compensation under the old system could be described as more generous, because it took place in accordance with common law principles.

The award of £100,000 was set aside and ultimately an issue of eligibility was taken. That was decided against him. The decision of the appeal panel was made on, or was reasonably contained in, a written decision of 14th July 2003; there was then also a jurisdiction point in issue, but I do not need to trouble with that. But in terms of the conclusion on the central question of eligibility which arises in this case, the appeal panel stated a short conclusion.

The issue of eligibility arises by reason of paragraph 7 of the 1969 scheme, which is the relevant scheme applying to the claimant's claim. Paragraph 7 provides as follows:

The appeal panel referred to the argument of Miss Harris, who appeared then, as she does now, as follows:

I have not heard, and did not see, any argument which turned upon different ethnic origin within the "family". I have heard argument today advanced by reference, essentially, to those points which Miss Harris made before the appeal panel, which she has helpfully developed by reference to matters to which I shall now come.

The central position is that the claimant, having been taken into care, was within the care of the local authority pursuant to the provisions of the Children Act 1948. Part II of the Children Act 1948 sets out the framework for the legal treatment of children in care of local authorities. Section 12 provides for the general duties of a local authority which, as is well known, require the authority to exercise their powers with respect to any child so as to further the best interests of the child and to afford the child the opportunity for the proper development of his character and his abilities.

Section 13 is headed "Mode of provision of accommodation and maintenance". It provides, in its material part, subsection 1:

Thus, in broad terms, as far as the legal duty of the local authority is concerned, they, in discharge of their parental responsibilities, are obviously obliged to provide accommodation and maintenance which they can choose to do either by boarding out, or by putting the child in one of their homes.

Section 14 is headed "Regulations as to boarding-out" and it provides that the Secretary of State may make provision for the welfare of children boarded out by local authorities and for other purposes in connection with boarding out. There are such regulations, namely the Boarding-Out of Children Regulations 1955 [SI 1955 No 1377], to which I have been taken. Regulation 1, headed "Scope of the Regulations" provides:

Regulation 1(3) provides:

It is not necessary to refer to many other Regulations, save that some reliance has been placed on Regulation 16, which is in part II. It is headed "Provision Applicable to Boarding-Out for a Period Exceeding Eight Weeks." Regulation 16 provides:

The reason why reference has been made to Regulation 16 is that Miss Harris invites the court to note that Regulation 16 talks of the child being boarded out as a member of "a household", as opposed to Regulation 1, which refers to a child being boarded out with foster parents to live in their dwelling "as a member of their family". She has submitted, in her thorough argument, that the concept of a household gives rise to wider considerations than the conceptual strictures which apply to the concept of someone living together as a member of a family. She submits, rightly, that obviously a household can embrace any number of people who may be there temporarily, nannies, au pair girls and so forth, and those, she submits, plainly would not be within the concept of persons living together as a member of the family.

The Regulations do define foster parents. Foster parents in Regulation 30 are:

Like so many definitions, it does not really add very much to the exercise, which is involved in trying to find an answer to the meaning of the words in this scheme and/or the meaning of the words in these Regulations.

The Schedule to the Regulations has a formal undertaking which has to be signed by foster parents. It provides for the parents to declare by the statement that they will receive from the local authority the named person:

The undertaking also includes, as is necessary, that the health will be provided for by consulting a doctor and that there be reference in respect of medical examination back to the local authority, where a local authority has placed the child. The local authority must be informed immediately of any serious occurrence. The foster parents will permit any person authorised by the Secretary of State or by the local authority to visit and see the child at the home and there has to be an undertaking that they will allow the child to be removed when so requested by a person authorised by the local authority.

The notes to the Regulations provide as to school attendance as follows:

That is the visitor who, whenever they see a child who has been boarded out, must consider the welfare, health, conduct and progress of the child, listen to any complaint and make a report about his or her condition.

The argument proceeded also by reference to some extracts from Hansard and the original scheme itself. Suffice it to say that we are not here endeavouring to interpret an Act of Parliament. The references to Hansard in fact shed no more light on the purpose of this exclusion or provision as to eligibility than an examination of the scheme itself illuminates. It is apparent from the Compensation for Victims of Crimes of Violence scheme, which was presented to Parliament by the Secretary of State for the Home Department in March 1964, paragraph 17, why the exclusion was included. Again, when one looks at the scheme as originally settled in 1964, Miss Harris has her "household" to "family" point available to her. I shall set out paragraph 17 therefore:

It would seem that the momentum for an exclusion in relation to people in the same household, or people living together as members of the same family, was driven by the difficulty in establishing facts in the complex web of domestic relations which can commonly prevail, and also because, if there was to be compensation, there was the risk that the compensation could be enjoyed by the offender. It is fair to say, too, that one can infer that, in such circumstances, collusive and false claims were being made in order to advance claims for compensation where injuries have been sustained in circumstances where no criminal offence has been committed. All these matters no doubt operated on the minds of the draftsmen of the scheme.

In 1969, as has been pointed out, and it remained so for some years, the provision was as I have already set it out at the beginning of this judgment: that the scope of the scheme did not extend to a victim who suffered injuries and where the offender who inflicted them were living together at the same time as members of the same family.

Reference has been made to two reported cases and one transcript of proceedings for leave to apply for certiorari. I shall briefly cover the cases.

First is R v Criminal Injuries Compensation Board ex parte Staten [1972] 1 All ER 1034, where Lord Widgery CJ, sitting with Melford Stevenson J and Cantley J, had to consider whether a man and wife who were living together still in the matrimonial home but in circumstances of estrangement, namely whether the wife, who was the victim in this case, slept in the bedroom with one of her two daughters, while he slept on the sofa in the living room, where there were no sexual relations between them and where she did not clean or cook for him and where they quarrelled and where the husband criminally attacked her, whether that set of circumstances gave rise to her falling foul of the exclusion that they were living together as members of the same family as provided for in paragraph 7.

The Lord Chief Justice concluded that they were indeed living together as members of the same family, but he also went on to say as a matter of principle:

The case does not advance matters, with respect, a great distance. It states that the words must be given their ordinary meaning, which is all that one would endeavour to do. As far as the facts of that case are concerned, it was plainly one where the relevant parties in the assault were then still man and wife and they were still living under the same roof. The fact that they were not enjoying what might be regarded as a normal family life, in the sense that they were neither sleeping together nor one providing for the other, might be regarded as insufficient factors to break down what would be regarded as the answer to the question on the facts, namely were they living as a family and living together as members of the same family, and the answer perhaps spoke clearly from the facts. As it happens, it was also a case which, as Miss Harris points out, fell within what might be regarded as one of the principle purposes of the exclusion, namely to prevent the board having to become involved in having to get to the bottom of, and being involved in, the intricacies of domestic life.

As it happened, in the next week, in 1972, the Lord Chief Justice, still sitting with Melford Stevenson J, but then Forbes J, in the Divisional Court heard an application from Mr Connell, as he then was, making an application on behalf of somebody who was living together in a tripartite situation, as man and wife with one of the men, but also in the same household as his brother who lived in the property. He submitted that:

That was because the assailant had left the property from time to time. But what is plain from my reading of the record, which does not provide any authority or real guidance, is that the court was of the view, as Melford Stevenson J observed, that the general purpose of this exclusion was to deny compensation which is really a consequence of the wear and tear of family life. They obviously regarded the wear and tear of family life, where somebody was having an affair with brother A, also included the wear and tear of living in the same house and being subjected to the injuries sustained at the hands of brother B.

I do not find it particularly helpful, but it shows the breadth to which the phrase in the relevant paragraph in the scheme can go. It also demonstrates that whereas Mr Connell was emphasising, as Miss Harris has been emphasising, argument based on the word "family", the court was concerned to look first of all at the words "living together" and then, as I shall observe, the concept of living together not, as Mr Connell was submitting, being a member of the family, because there was some legal relationship or blood tie, but as the paragraph provides, "as a member of the family".

That came before Macpherson J in another case on 11th March 1996; R v Criminal Injuries Compensation Board ex parte Darren Paul Richardson. In that case, it was an unmarried couple with a young child of the woman when the male partner in the relationship injured the child. There, as we have seen from the relevant paragraph of the scheme, although not married, they were to be regarded as man and wife. Macpherson J concluded that it would be wholly illogical to say that the child who was living with them in the household was not a member of the family. He was undoubtedly a member of his mother's family. His mother is to be taken to be married to her cohabitee. Any outside observer looking at the situation in my judgment without any hesitation would have said there is a family living together.

There it was that that child who was injured at the hands of the partner of the mother was held to be living with them as a member of the family, and in particular, vis-à-vis the assailant, living as a member of the same family.

So, that is the state of such authority as exists on the point. In my judgment, the matter falls to be resolved in this case, first of all, by reference to the legal framework which has given rise to the relationship which existed between the claimant and Mr and Mrs H. One cannot in my judgment come to a true conclusion as a matter of factual analysis without understanding why it was that the claimant was in Mr and Mrs H's household.

According to the Boarding-Out Regulations, the claimant had been placed with Mr and Mrs H, in discharge of the local authority's duties and obligations, to enable him to live in their dwelling as a member of their family: not to live in the household and thereby become a member of the same family. It is not a question which requires a search for a legal relationship or a blood relationship, it is a question which requires the court to determine whether there is any sufficient proximity coming close to rendering the claimant a member of the same family. The question is, as it has been said, a mixed question of fact and law, but principally it is a question of fact to be determined in the legal context involved.

The starting point is to be found in the reason for him being in the household, namely to live as a member of the family. There is nothing to suggest the contrary. Everything which took place in the time he was there was consistent with this factual position. In my judgment the parental-type duties owed towards foster children are not in point. The essence of the Boarding-Out provision is that, as the principal Act provides, the maintenance and accommodation of the child is provided for by foster parents, that the way in which the maintenance and accommodation is provided is in accordance with the undertaking which the foster parents have to sign, and the circumstances which prevail in the household are ones which require the child to be treated as a member of the family, not because he has become a member of the family, but because he is there to live as a member of family. That is to be reflected in the normal everyday care and consideration and time and energies which are directed by the foster parents towards him.

In terms of the decisions which have to be made, the foster parents, as Miss Harris rightly pointed out, are not the persons who make the major decisions, for example, with regards to questions of health. The very question whether a child remains with the foster parents is, in point, one for the family of the claimant. He was a member of one family, his family, namely that comprising, in particular, his sister and his mother. I do not accept the submission of Miss Harris that to conclude that he was living there, together as a member of the family within the meaning of paragraph 7, means he had two families. He had only one family, but, in accordance with the terms of paragraph 7, he was living together at the time with Mr and Mrs H as a member of the H family.

In my judgment, the conclusion which I have reached is consistent with at least part of the original purpose which the draftsmen of the scheme had in mind. Where there were facts which involved investigation of domestic situations, the scheme was to adopt a hands-off and restrained approach. Some may say that that was capable of giving rise to objectively observed unfair situations. That may be so, and it may well be that that is why, when one looks at the modern scheme, one sees a provision which is less restrictive, which enables those living in family situations to claim compensation where they are victims of criminal conduct within the household, so long as either there has been a prosecution, or that the reasons for there not being a prosecution can be explained by the difficulties inherent in the household.

For the above reasons, I am satisfied that on this argument, as it has been advanced, the conclusion of the Appeal Board was correct and that there can be no other conclusion. In my judgment it is impossible to impugn the conclusion of the Appeal Board as irrational, having regard to the facts they had to consider. Indeed, I would go further. In my view that their conclusion was right.

That leaves another matter unresolved. It was mentioned to the court at a very late stage, or at least emphasised to the court at a very late stage. There is, on appeal to the Outer Court in Scotland, a decision, if not identical in facts, at least similar, in connection with the scheme as it operates in Scotland. It is a case called Smillie where an argument has been taken under the Convention on Human Rights challenging the compatibility of paragraph 7 with the Convention. It is impossible for me to foresee the result. Indeed, it is quite impossible for me on the information that I have been given to take a considered view as to what merit there is in this compatibility argument. I simply know that it probably depends upon the combined effect of Article 14 of the Convention and Protocol 1.

I gather the case of Smillie also gives rise to issues of retrospectivity which, of course, would also apply as far as this claimant is concerned. But in discharging my duties under the Human Rights Act, it is impossible for me to exclude the existence of the argument. Having regard to the time which has been taken to deal with the issues I have dealt with, it would have been a complete waste of time to adjourn the matter to await the outcome of the Scottish case without dealing with the argument advanced to this point.

Having dealt with the argument advanced, I am satisfied that the only proper course for me to take is to adjourn the question of the issue under the Human Rights Act and Miss Harris must undertake to assist the court when the result of the Scottish case is decided. She is at liberty to raise in these proceedings any point that she, in her professional judgment, considers arises which could be deployed for the benefit of the claimant and, of course, the appeal panel must have the opportunity to respond. It may be that nothing will come of it and it may be the end of the matter, but the court must be informed as to the development and the matter must in any event come back to me.

Thank you all very much. When did you say, Mr Coppel, the court sessions end in Scotland?

MR COPPEL: I think by 9th July.

MR JUSTICE NEWMAN: Right. If we do not have it listed before the end of July, it seems to me that you get the decision in July if you can, you will need to reflect on it, you will need to see whether there is anything in it and if so produce your amended grounds, but I think the administrative court office ought to be informed in July if this point is going to be taken and if you are going to take this window of opportunity.

I cannot see that there is any danger of anything I have said being contrary to any favourable conclusion that might come out of the convention arguments, can you? I cannot see it arising. I am merely wishing to provide -- I do not want to have to revisit what I have already decided on the back of the Convention, that is all.

MISS HARRIS: My Lord, can I also report and notify the court if the decision is not handed down in July.

MR JUSTICE NEWMAN: Of course. You must keep the court updated.

MISS HARRIS: Just keep the court up to date.

MR JUSTICE NEWMAN: Yes and they must let me know. Mr Coppel, are there any problems on your side?

MR COPPEL: No, my Lord, I do not think so.

MR JUSTICE NEWMAN: There is nothing you want to add to that by way of direction as to the future or anything else?

MR COPPEL: My Lord, no. We would wish to be kept informed at the same time.

MR JUSTICE NEWMAN: Of course. Well, you will be more informed than anybody else, will you not?

MR COPPEL: I meant as to the claimant's position.

MR JUSTICE NEWMAN: Oh, yes. Well that will be predictable, according to the decision, but in any event perhaps I could be provided with the transcript so that I can deal with this transcript as it stands.

MISS HARRIS: My Lord, the only matter that I would like to deal with, with the greatest respect, is permission to appeal, but of course we are --

MR JUSTICE NEWMAN: I do not think you want to deal with that now.

MISS HARRIS: -- we are part heard at the moment.

MR JUSTICE NEWMAN: Exactly. I think you ought to leave that until -- and if it is going to be dealt with on papers then you can deal with your permission to appeal on papers, and any response can come on paper.

MISS HARRIS: Certainly, as the CICAP will no doubt know the decision before we do, perhaps they can help us by letting us know. My Lord, can I ask for a detailed public funding assessment?

MR JUSTICE NEWMAN: Yes you can and you have it. Thank you very much.