R v Criminal Injuries Compensation Board, Ex parte A

Once leave to apply for judicial review has been granted, the court has determined any application to extend time. Unless the grant is set aside, that issue cannot be reopened at the substantive hearing. The court may nevertheless refuse relief where undue delay satisfies the statutory conditions concerning hardship, prejudice or good administration.

Procedural unfairness is assessed objectively and does not depend on proof of fault. Although an applicant ordinarily bears responsibility for producing evidence, a hearing may be unfair where an important medical report is omitted, materially erroneous evidence is presented instead, and the decision-maker relies heavily on the public authority responsible for supplying relevant material.

A sought compensation from the Criminal Injuries Compensation Board for injuries allegedly sustained during a burglary and sexual assault. The Board rejected her claim after preferring police evidence and concluding that she had not proved that she was the victim of the alleged crime of violence. It did not see a police doctor's report stating that the anal findings were consistent with the allegation of buggery.

Carnwath J granted leave to seek judicial review outside the ordinary time limit. Popplewell J subsequently reconsidered the extension of time and refused relief. The Court of Appeal dismissed A's appeal: [1998] Q.B. 659; [1997] 3 W.L.R. 776. On A's further appeal in R v Criminal Injuries Compensation Board, Ex parte A, the House considered whether the time issue could be reopened, whether the omission of the medical report made the hearing unfair, and whether the Board's decision should be quashed and remitted.

1. Appeal allowed unanimously. Lord Slynn of Hadley delivered the leading speech. Lords Mackay of Clashfern, Nolan and Clyde agreed with his reasons. Lord Hobhouse of Woodborough agreed with the disposition and the natural-justice reasoning. The Board's decision was quashed and the application remitted for reconsideration in light of the police doctor's report.

2. Delay and leave. Per Lord Slynn, Rules of the Supreme Court, Order 53, rule 4(1), and section 31(6) and (7) of the Supreme Court Act 1981 performed different functions but had to be read together, consistently with R v Dairy Produce Quota Tribunal for England and Wales, Ex parte Caswell [1990] 2 AC 738. Granting leave necessarily resolved the applicant's request for an extension of time. Unless that grant was set aside, the extension issue could not be reopened at the substantive hearing. The court could still refuse substantive relief under section 31(6) if the statutory conditions were met. Ex parte Worth [1985] S.T.C. 564 was overruled. Lord Nolan emphasised that a judge remained free expressly to defer the time issue for determination at the inter partes hearing.

3. Nature of review. Per Lord Slynn, the Board's decisions were amenable to judicial review, but review was not an appeal on fact. The Board could evaluate competing evidence, and the applicant bore the burden of establishing that she was the victim of a crime of violence.

4. Objective unfairness. Per Lord Slynn, fault, fraud or deliberate misconduct was unnecessary. The question was whether the procedure was objectively unfair. An applicant ordinarily had to produce the supporting evidence, and the Board generally had no duty to search for evidence or grant an unrequested adjournment. Those general propositions did not resolve the special circumstances. The Board depended heavily on police cooperation; the police and Board knew of the examination by the police doctor; and the erroneous oral account of the examination concerned a crucial matter. Reasonable inquiry would probably have disclosed the written report. Failure to place it before the Board, and if necessary to adjourn for that purpose, meant that justice was neither done nor seen to be done.

5. Materiality and remedy. The medical report did not prove the alleged offence, and the Board could still reject the claim. It was nevertheless capable of materially affecting A's credibility and the Board's treatment of the other evidence. The passage of time did not justify leaving the procedurally unfair decision in place because the new evidence was documentary and could still be considered. Lord Slynn also stated that material error of fact could support judicial review in this case, but decided the appeal on natural justice. Lord Hobhouse expressly reserved the wider error-of-fact question.

1. House of Lords: The appeal was allowed unanimously. The Board's decision was quashed and the matter remitted for reconsideration in light of the police doctor's report.
2. Court of Appeal: A's appeal from Popplewell J was dismissed: [1998] Q.B. 659; [1997] 3 W.L.R. 776. The court held that the Board had no duty to obtain the report or adjourn for it and declined to extend the existing fraud and procedural-unfairness authorities to an innocent misstatement by a witness.
3. High Court, Popplewell J: Judicial review relief was refused. The judge reconsidered the extension of time and held that good reason for extending time had not been shown, although he found no relevant hardship, prejudice or detriment to good administration.
4. High Court, Carnwath J: Leave to apply for judicial review was granted on an ex parte application.