E v Criminal Injuries Compensation Appeals Panel

A person who is incapable in law of consenting to particular acts may nevertheless be capable of consenting in fact. The decision-maker must assess factual consent by examining the person’s actual capacity or ability to understand and apply information material to the decision, together with all relevant circumstances. The gravity of the decision may affect the capacity required. Reasons must show, with sufficient clarity, that the relevant considerations were considered. A failure to identify or express that assessment adequately may justify permission to appeal or judicial review.

The applicant sought permission to appeal from an order of Silber J, who had upheld the refusal of the Criminal Injuries Compensation Appeals Panel to award compensation for indecent assaults committed while the applicant was on remand in prison.

The applicant was legally incapable of consenting because of his mental disability. The Panel nevertheless found that he had consented in fact, relying principally on his conduct, his failure to seek help and the surrounding circumstances. The central issue was whether the Panel had adequately assessed his factual capacity to consent and given sufficient reasons for its conclusion.

1. Permission granted. The renewed applications for permission to appeal were granted. There was no order for costs.
2. A person deemed incapable in law of consenting to acts of indecency may, depending on the circumstances, be found capable of consenting in fact. If factual consent existed, the alleged acts would not constitute crimes of violence for the purposes of paragraph 8(a) of the Criminal Injuries Compensation Scheme 1996, and mental injury alone would be excluded by paragraph 19(c).
3. The question of factual consent required consideration of the claimant’s actual capacity or ability to understand and apply information material to the decision. The seriousness of the decision could bear on the degree of capacity required. Relevant circumstances included the claimant’s age, background, history, personality, intellect, suggestibility, vulnerability and relative sexual experience.
4. The Panel was required to look at and evaluate all relevant circumstances bearing on the reality or otherwise of consent. Although its reasoning suggested that it may have considered some or all of those matters, it did not make that clear. Its reasons were therefore arguably insufficiently expressed or identified.
5. The Court agreed with the other members of the constitution.

• Court of Appeal (Civil Division): The renewed applications for permission to appeal were granted; no order for costs.
• High Court, Administrative Court: Silber J upheld the refusal of the Criminal Injuries Compensation Appeals Panel.
• Criminal Injuries Compensation Appeals Panel: The Panel upheld the refusal by officers of the Criminal Injuries Compensation Authority to award compensation.