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

Under the Criminal Injuries Compensation Scheme, whether conduct amounts to a crime of violence is assessed by reference to the events that occurred, rather than by classifying the offence in the abstract. The central question is whether the applicant was in fact a victim of a crime, which ordinarily depends on the absence of real consent. Real consent requires free and voluntary agreement; submission is not equivalent to consent. Where vulnerability is alleged, the panel must consider the applicant’s vulnerability, the imbalance and relative responsibility between the parties, and whether the relationship or surrounding circumstances affected the reality of consent. A decision is unlawful where the panel fails to address material matters relevant to that inquiry. Later statutory changes cannot retrospectively alter whether the conduct constituted a crime of violence at the relevant time.

Two conjoined judicial review applications challenged decisions of the Criminal Injuries Compensation Appeal Panel under the Criminal Injuries Compensation Scheme.

CD, aged almost 13, claimed compensation for unlawful sexual intercourse with a 21-year-old man. Her appeal was rejected because the panel concluded that she had consented and that there had been no crime of violence.

JM claimed compensation for repeated sexual assaults by the son of her foster mother when she was aged about 12 or 13. The panel concluded that the relationship was consensual and that the conduct did not amount to a crime of violence. The issue was whether either panel had properly assessed real consent, vulnerability and the parties’ respective responsibility.

The applications were decided separately. CD’s application was dismissed. JM’s application succeeded and the panel’s decision was quashed.

1. The question under paragraph 8(a) of the Criminal Injuries Compensation Scheme was whether the events actually occurring were both a crime and a crime of violence. The expression was not a term of art. It required the panel to apply the ordinary understanding of the circumstances, considering the nature rather than the results of the unlawful conduct.

2. The governing inquiry was whether the applicant was, in relation to what happened, a victim of a crime of violence. This would be so where there was no real consent. Real consent meant consent freely and voluntarily given. Submission was not the same as consent. A sexual offence committed against a person legally incapable of consenting would not usually be a crime of violence if that person had in fact consented.

3. Where vulnerability was asserted, the panel had to consider whether the applicant’s apparent consent was real. Relevant matters included the applicant’s age and vulnerability, the imbalance in the relationship, the parties’ relative responsibility, the opportunity to complain, and whether the circumstances showed submission rather than free agreement. A boyfriend-girlfriend relationship did not automatically, or ordinarily by itself, establish real consent by a girl aged 12 or 13.

4. In CD’s case, the panel considered the material circumstances. It rejected her account of the amount of alcohol consumed and relied on her previous sexual experience, her conduct before and after the incident, the absence of violence, threats or manipulation, and evidence that she had enjoyed the intercourse. The decision was therefore not shown to be unlawful.

5. In JM’s case, the panel failed adequately to consider her vulnerability as a child in foster care, her dependence on the foster family, the imbalance between her and the foster mother’s son, their relative responsibility, the significance of her statement that he had no right to continue when she said no, whether she could realistically have complained, and the possible effect of her previous abuse. The reasoning could not justify the conclusion that she had given real consent.

6. The court could consider later judicial decisions clarifying the law, but not subsequent statutory changes to criminal law, since the relevant question was whether the conduct constituted a crime of violence when it occurred. Reasons supplied long after a decision had been made required caution, particularly where they differed from the contemporaneous reasons.

These were first-instance judicial review applications. The two applications were heard together by the Administrative Court.