Jones v First Tier Tribunal (Social Entitlement Chamber)

Whether conduct amounts to a “crime of violence” under the Criminal Injuries Compensation Scheme is a question of law admitting one correct answer, not merely a question of fact for the compensating authority or tribunal. A section 20 offence involving the infliction of grievous bodily harm by conduct which the accused foresaw would cause some physical harm can constitute a crime of violence, even where the conduct was not hostile or specifically directed at the injured person. The distinction between recklessness and carelessness remains material: actual foresight of some harm is required. A tribunal must assess that issue from all relevant and admissible evidence.

The appellant suffered catastrophic injuries when his gritter lorry collided with an articulated lorry whose driver had braked after a man ran into its path on a motorway intending to commit suicide. The Criminal Injuries Compensation Authority refused compensation under the Criminal Injuries Compensation Scheme 2001, and the First-tier Tribunal rejected the appeal.

The Upper Tribunal upheld that decision on judicial review, holding that the necessary mens rea had not been established. The appeal concerned whether the First-tier Tribunal had erred in law in assessing recklessness and whether a section 20 offence could constitute a crime of violence under the Scheme.

1. Appeal allowed; judicial review granted. The First-tier Tribunal’s decision was quashed and the matter remitted to a differently constituted First-tier Tribunal to reconsider recklessness.
2. Whether a section 20 offence is a “crime of violence” under the Scheme is a question of law admitting one answer. Whether an offence was committed, and whether the injury was directly attributable to it, are questions of fact involving evidence and permissible inferences.
3. A section 20 offence requires the infliction of grievous bodily harm by conduct which the accused at least foresaw would cause some physical harm. Carelessness or negligence, without actual foresight, is insufficient.
4. A section 20 offence satisfying that mental element can constitute a crime of violence, even without a hostile act directed towards the injured person. The First-tier Tribunal had stated the test too narrowly.
5. The tribunal had to decide whether Mr Hughes foresaw some harm on the balance of probabilities and by reference to relevant and admissible evidence. Suicidal intent did not necessarily exclude foresight of harm to others, and direct evidence of mental state was unnecessary if the inference was properly available.
6. The First-tier Tribunal’s reasoning involved an error of law because it focused on intention to harm rather than the possibility of foresight, treated recklessness inadequately, and relied on an unqualified opinion about the effect of suicidal intent. The Court declined to substitute its own finding because that was not the only possible outcome.

• Court of Appeal (Civil Division): allowed the appeal, granted judicial review, quashed the First-tier Tribunal’s decision, and remitted the issue of recklessness to a differently constituted tribunal.
• Upper Tribunal (Administrative Appeals Chamber): upheld the First-tier Tribunal’s decision on 11 June 2010.
• First-tier Tribunal (Social Entitlement Chamber): rejected the compensation appeal.
• Criminal Injuries Compensation Authority: refused the application and maintained that decision on review.