Jones v First Tier Tribunal and Criminal Injuries Compensation Authority

A tribunal deciding whether an injury is attributable to a crime of violence must ask first whether a criminal offence was committed and, secondly, whether the nature of the criminal act made that offence a crime of violence. An offence under section 20 of the Offences against the Person Act 1861 always amounts to a crime of violence.

Section 20 recklessness requires proof that the offender actually foresaw that some physical harm to another person might result. It does not require foresight of grievous bodily harm. Whether actual foresight existed is ordinarily a question of fact for the specialist tribunal. An appellate court should respect the tribunal’s reasons and should not recast a rational factual finding as an error of law merely because it would have drawn a different inference.

After a man apparently seeking to take his own life ran in front of a lorry, the resulting collision caused catastrophic injuries to a nearby gritter driver. The driver sought compensation under the Criminal Injuries Compensation Scheme 2001, alleging that the man had committed an offence under section 20 of the Offences against the Person Act 1861.

The First-tier Tribunal found that actual foresight of physical harm to another person had not been proved. The Upper Tribunal dismissed a judicial review challenge in [2010] UKUT 199. The Court of Appeal allowed a further appeal, granted judicial review and remitted the matter to a differently constituted tribunal: [2011] EWCA Civ 400; [2012] QB 345.

The central issues were whether the First-tier Tribunal had made an error of law in finding no section 20 offence, whether such an offence necessarily constituted a crime of violence, and how appellate courts should approach factual classification by specialist tribunals.

1. Appeal allowed. Lord Hope held that the Court of Appeal had identified no error of law in the First-tier Tribunal’s decision. The tribunal had applied the correct section 20 test and rationally found that the alleged offender’s actual foresight of physical harm to another person had not been proved. The First-tier Tribunal’s decision refusing compensation was restored. Lord Carnwath agreed, and Lord Walker, Lady Hale and Lord Sumption agreed with both judgments.
2. For section 20 of the Offences against the Person Act 1861, recklessness requires proof that the defendant actually foresaw that some physical harm to another person might result. Foresight that the harm would be as grave as that which occurred is unnecessary. The Court applied the formulation in R v Mowatt [1968] 1 QB 421, as approved in R v Savage; DPP v Parmenter [1992] 1 AC 699.
3. A tribunal applying the Criminal Injuries Compensation Scheme 2001 must determine whether a criminal offence was committed and then whether, having regard to the nature of the criminal act, it was a crime of violence. The consequences may illuminate the nature of the act, but are not decisive. An offence under section 20 always amounts to a crime of violence because unlawfully or recklessly wounding or inflicting grievous bodily harm, with foresight of some physical harm, is necessarily violent.
4. The First-tier Tribunal never reached the second question because it found that the required offence had not been established. Fairly read, its compressed reasons showed that it was not satisfied of actual foresight. The Court of Appeal treated the case as though the tribunal had found an offence but denied that it was a crime of violence, and impermissibly substituted its own view of the likely inference.
5. Lord Hope and Lord Carnwath held that appellate restraint is required when reviewing specialist tribunals. Courts should not infer misdirection merely because every reasoning step is not expressed. The boundary between fact and law should be approached pragmatically. The specialist tribunal system, particularly the Upper Tribunal, is primarily responsible for developing consistent guidance on central expressions within a statutory scheme. Even where a classification issue is treated as one of law, the primary tribunal’s judgment may deserve considerable respect.

1. United Kingdom Supreme Court: Allowed the Criminal Injuries Compensation Authority’s appeal and restored the First-tier Tribunal’s refusal of compensation: [2013] UKSC 19.
2. Court of Appeal: Allowed the claimant’s appeal, granted judicial review and remitted the matter to a differently constituted First-tier Tribunal: [2011] EWCA Civ 400; [2012] QB 345.
3. Upper Tribunal (Administrative Appeals Chamber): Dismissed the judicial review application, holding that the First-tier Tribunal had applied the correct recklessness test and reached a rational factual conclusion: [2010] UKUT 199; [2011] RTR 55.
4. First-tier Tribunal: Refused compensation because it was not satisfied that the alleged offender intended harm or actually foresaw that some physical harm might be caused, so no section 20 offence was proved.