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

When an appeal has been determined in an appellant’s absence, the decision whether to order a rehearing must address the interests of justice as a whole. A reasonable excuse for non-attendance may arise where the appellant is practically unable to present the case and relies on representation that is unavailable. The decision-maker must assess whether the absence of a postponement and the refusal of a rehearing create a real possibility of injustice. Administrative convenience, costs, delay and the apparent strength of the original case are relevant, but cannot outweigh the effective denial of a fair opportunity to present a non-hopeless appeal.

The claimant sought judicial review of the Criminal Injuries Compensation Appeal Panel’s refusal to rehear his compensation appeal. His original appeal had been dismissed in his absence after he failed to attend an oral hearing. He said that he had dysphasia, could not represent himself coherently, and had expected his solicitor, who was abroad, to represent him. The Panel refused a rehearing under paragraphs 79 to 82 of the Criminal Injuries Compensation Scheme 2001, relying on the lateness of the request, the availability of documentary material, costs, delay, witness attendance and the prospects of success. The central issue was whether the refusal was unlawful because the claimant had a reasonable excuse and had been denied a fair opportunity to present his appeal.

1. The claim succeeded to the extent that the refusal of a rehearing was unlawful. The court distinguished between irrationality, which presents a high hurdle, and procedural fairness, which was for the court to determine while giving appropriate weight to the primary decision-maker’s evaluation.

2. The Panel was entitled to regard the notice given to the claimant as adequate under paragraph 73 of the Criminal Injuries Compensation Scheme 2001. The claimant’s failure to seek a postponement earlier was a sound consideration, although not necessarily decisive.

3. The claimant could not reasonably have been expected to present the appeal himself. Given his dysphasia and reliance on a representative, the unavailability of that representative was at least some reason for postponement. There was little practical difference between attending without representation and not attending.

4. The court considered the reasons cumulatively. The fact that the original Panel had decided the matter on the documents, the possible need for the police officer to attend again, costs, delay, and the prospects of success did not remove the procedural unfairness. The appeal grounds were not hopeless, and the oral hearing had effectively been denied.

5. The suggestion that the claimant might not attend a rehearing was speculative. The relevant question was substantially whether his representative would attend.

6. Under paragraph 81 of the Scheme, the claimant had a reasonable excuse for non-attendance and should have been granted a postponement. There was a real possibility that a fair hearing could affect the outcome. The matter was remitted to a differently constituted panel for determination on the merits. The court made no order for costs against the defendant.

First-instance judicial review proceedings. Permission was granted on the papers by Munby J on 31 October 2006. The claim was then determined by the High Court (Administrative Court).