R (August) v Criminal Injuries Compensation Appeals Panel (R (Brown) v Criminal Injuries Compensation Appeals Panel)

Whether an offence constitutes a crime of violence under the Criminal Injuries Compensation Scheme is a question of ordinary language and fact. The Panel must identify the crime and assess the nature of the events in all their circumstances. It must not classify an offence as invariably violent or require force or threats in every case.

A claimant’s consent in fact may be a real and important consideration, but it is not an automatic bar where physical injury is claimed. The circumstances in which consent was given must also be considered. The fact that consent is legally ineffective to prevent criminal liability does not establish that the crime was violent for the purposes of the Scheme.

These conjoined appeals concerned applications for compensation for sexual offences committed against boys. The Criminal Injuries Compensation Appeals Panel rejected both applications because it found that the relevant sexual activity had been consensual and did not constitute a crime of violence under paragraph 8(a) of the Criminal Injuries Compensation Scheme.

Owen J refused Mr August’s application for judicial review. Collins J allowed Mr Brown’s application, quashed the Panel’s decision and remitted his claim for reconsideration. Mr August appealed in the first case, while the Panel appealed in the second.

The central issue was the relevance of consent in fact when deciding whether criminal conduct constituted a crime of violence, particularly where the consent was ineffective to prevent the conduct from being criminal.

1. Disposition. The court unanimously dismissed Mr August’s appeal. It unanimously allowed the Panel’s appeal in Mr Brown’s case, set aside Collins J’s order and substituted an order refusing judicial review.

2. Buxton LJ, with whose conclusions Pill LJ and Sir Anthony Evans agreed, held that the expression “crime of violence” was not a term of art. Following R v Criminal Injuries Compensation Board, ex parte Webb [1987] 1 QB 74, the Panel had to identify the crime actually committed and decide, as a question of ordinary language and fact, whether its nature in all the circumstances was violent. The focus was on the nature of the conduct rather than its consequences. The infliction or threat of force or a hostile act was usual but not an indispensable requirement.

3. Consent in fact was relevant to that assessment and could be central. It was not, however, a universal or automatic bar to characterising conduct as a crime of violence. All relevant circumstances had to be considered, including whether consent was real and the circumstances in which it was given. The legal ineffectiveness of consent to prevent criminal liability did not determine whether the conduct was violent under the Scheme.

4. In August, the Panel was entitled to treat consent as the only live issue on the facts and as the claim had been presented. It considered the claimant’s age, history, psychological condition and earlier experiences. Its finding that he had willingly participated and consented in fact was open to it. The Panel neither misunderstood the law nor reached an irrational conclusion.

5. In Brown, the Panel had considered consent within the particular environment and circumstances at the approved school. Its reasons, read with the chairman’s later statement, did not establish that it had adopted a general rule that consent always excluded a crime of violence. Collins J had therefore either misread the Panel’s reasoning or impermissibly substituted his own factual assessment.

6. Pill LJ added that Panel decisions should ordinarily include sufficient reasons prepared at, or soon after, the hearing where the circumstances require them. Producing what was effectively a reasoned judgment many months later was unsatisfactory.

1. Court of Appeal: Mr August’s appeal was dismissed. The Panel’s appeal in Mr Brown’s case was allowed, Collins J’s order was set aside, and judicial review was refused. Permission to appeal to the House of Lords was refused.
2. Administrative Court—August: Owen J refused Mr August’s application for judicial review of the Panel’s decision.
3. Administrative Court—Brown: Collins J quashed the Panel’s decision and remitted the claim for reconsideration.