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Notes:
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Supreme Court decision reported as [2013] AACR 25
Meaning of the phrase “crime of violence” for the purposes of the Scheme
Practice – weighing evidence and fact finding – the function and relationship between tribunals and appellate courts
On 18 January 2005 the respondent, Mr Jones, was driving a lorry along the inside lane of a carriageway. Ahead of him, in the central lane, was another lorry. Ahead of both of these vehicles was a car which was parked on the hard shoulder of the carriageway. As the leading lorry approached the car a man, Mr Hughes, ran into the middle of the central lane. Despite braking, the driver hit Mr Hughes, killing him instantly (the inference was that Mr Hughes’ intention was to kill himself). As the leading lorry braked it swerved into the path of Mr Jones’ lorry. Mr Jones was so severely injured in the resultant collision that he needed full-time care. An application was made on his behalf to the Criminal Injuries Compensation Authority (the CICA) for compensation. The CICA refused Mr Jones’ claim on the grounds that he was not a victim of a criminal injury, defined in the relevant Scheme as an injury directly attributable to “a crime of violence”. Mr Jones appealed to the First-tier Tribunal (the F-tT) on the ground, among others, that Mr Hughes had inflicted grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. The F-tT dismissed this aspect of the appeal as it was not satisfied that Mr Hughes intended to cause harm, or was reckless as to whether harm might be caused by his actions. Mr Jones applied to the Upper Tribunal for relief by way of judicial review of the F-tT’s decision. The Upper Tribunal accepted that the mens rea for an offence under section 20 of the 1861 Act was that the defendant either intended or foresaw that his act would cause harm to some person: R v Savage; DPP v Parmenter [1992] 1 AC 699, 752 per Lord Ackner. It held that the F-tT had properly directed itself to the question it had to consider, and that its finding, that Mr Hughes was not reckless, was reasonable. Mr Jones was granted permission to appeal to the Court of Appeal. The Court of Appeal allowed the appeal and granted judicial review of the F-tT’s decision, remitting the matter to a differently constituted F-tT to reconsider the case in the light of its judgment. The CICA appealed against that decision to the Supreme Court.
Held, allowing the appeal, that:
1. built into the phrase “a crime of violence” are two questions which the F-tT had to consider. The first was whether, having regard to the facts which had been proved, a criminal offence had been committed. That question is for the tribunal, having informed itself as to what the law requires for proof of that offence, to determine as a matter of fact. The second was whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence. This may also raise an issue of fact for the tribunal to determine depending on what the law requires for proof of the offence. The range of acts that fall within the broad definition may vary quite widely, so the question whether there was a crime of violence would have to be determined by looking at the nature of what was done. But in this case the words of the statute admit of only one answer. They speak for themselves. To wound or inflict any grievous bodily harm on another person unlawfully or recklessly, foreseeing that physical harm to some other person will be the consequence of his act, is a crime in terms of section 20. So too is the unlawful or reckless application of physical force of any kind to the person, directly or indirectly, so that they suffer injury. The crime that section 20 defines will always amount to a crime of violence for the purposes of the Scheme (paragraphs 16 to 18);
2. the appeal to the F-tT failed because it was not proved to the tribunal’s satisfaction that a section 20 offence had been committed. The F tT appreciated that the question it had to consider first was whether an offence under section 20 had been committed. It identified correctly the tests that had to be applied and reached the conclusion that it was not satisfied that such an offence was committed. It did not go on to consider whether a crime of violence had been committed within the meaning of the Scheme because, having concluded that no crime was committed, it did not have to do so. The F-tT having examined the nature of the act, rather than its consequences, concluded that there was no hostile act directed towards a person who suffered injury as a result and it was not satisfied that Mr Hughes actually foresaw that his behaviour might cause physical harm to others. So it was not persuaded that he had the necessary mens rea of recklessness to bring his actions within a section 20 offence. The Upper Tribunal made it clear in its judgment that the F-tT’s reasoning should be read in this way and that its finding was reasonable (paragraph 20);
3. the Court of Appeal failed to identify a flaw in the reasoning of the F-tT which could be said to amount to an error of law (paragraphs 26);
4. the interpretation and application of a specialised statutory scheme having been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal is to develop structured guidance on the use of expressions which are central to the scheme, so as to reduce the risk of inconsistent results by different panels at the F-tT. It was primarily for the tribunals, not the appellate courts, to develop a consistent approach to such issues as to whether the words “a crime of violence” did or did not apply to the facts which had been proved. This is something which they are peculiarly well fitted to determine. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the F-tT and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals (paragraph 16 and 41).
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