Green, R (on the application of) v Criminal Injuries Compensation Appeals Panel

A compensation appeals panel exercising a discretion under the Criminal Injuries Compensation Scheme 2001 must make findings on facts relevant to that discretion and give clear reasons addressing substantial submissions. A panel must not treat guidance examples as exhaustive where the underlying statutory discretion is wider. Guidance concerning injuries sustained in a voluntarily accepted fight or after striking the first blow does not apply where the compensable injury resulted from a distinct subsequent assault. The applicant’s earlier conduct may still be relevant to the wider discretion, but it must be evaluated lawfully and with adequate reasons.

Mr Green sought judicial review of the dismissal of his appeal against refusal of compensation for serious injuries sustained after an altercation outside a bar. He had struck the first blow during an initial scuffle, then ran away and was chased before being assaulted by the two men involved. The Criminal Injuries Compensation Appeals Panel treated the events as one continuing fight and refused any award under paragraph 13(d) of the Criminal Injuries Compensation Scheme 2001.

The central issues were whether the Panel had made adequate findings and given sufficient reasons, whether it had properly addressed provocation and the applicant’s withdrawal from the first incident, and whether the guidance concerning fights and first blows applied.

The claim succeeded. The Panel’s decision was quashed and the appeal was directed to be reheard by a separate panel.

1. Under paragraph 13(d) of the Criminal Injuries Compensation Scheme 2001, the Panel had a discretion to withhold or reduce an award where the applicant’s conduct before, during or after the incident made an award inappropriate. In exercising that discretion, it had to make findings of fact on matters relevant to the discretion and give sufficiently full and clear reasons explaining both the exercise of the discretion and the rejection of substantial submissions.
2. The Panel accepted the relevant witness evidence but found that the later assault was a continuation of the initial fight. That finding was unsupported by the evidence and inconsistent with the accepted evidence, which described a unilateral assault after Mr Green had fled. The unlawful factual premise materially undermined the exercise of the discretion.
3. The general discretion in paragraph 13(d) was wider than the first two examples in paragraph 16 of Part 4 of the guidance. Even where those examples did not apply, a refusal or reduction could be lawful in an appropriate case if supported by proper reasoning.
4. The first guidance example concerned injury caused in a fight which the applicant had voluntarily agreed to join. The second concerned a situation where the injury was sustained when the person who struck the first blow fought back. Neither applied to injuries caused by a separate subsequent assault. The applicant’s participation in the earlier scuffle could nevertheless be considered under the wider discretion.
5. The Panel failed adequately to address the alleged provocation, the significance of Mr Green’s withdrawal, inconsistencies in evidence from his former wife, and the absence of evidence establishing whether the brain injury was caused by his head hitting the road or by kicking. The reasoning was therefore inadequate under the principles discussed in M v Criminal Injuries Compensation Appeals Panel, R v Criminal Injuries Compensation Board ex parte Cook and R v Secretary of State for the Home Department ex parte Doody.

There was no order for costs. The claimant’s publicly funded costs were directed to be assessed.

The judgment does not state a prior appellate decision. The Panel’s decision was quashed and the matter remitted to a separate panel for rehearing.