Criminal Injuries Compensation Authority v First Tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) & Anor

Under the Criminal Injuries Compensation Scheme 2008, a person not conceived when a crime of violence occurred cannot be treated as having sustained a personal injury directly attributable to it. The scheme requires an injury to be sustained by an existing victim. A child’s genetic condition cannot be assessed against a hypothetical state of non-disability or non-existence. A claim that the child should never have been conceived is a wrongful-existence claim, not a compensable personal injury claim. The scheme is governed by ordinary statutory construction because it operates under the Criminal Injuries Compensation Act 1995 and was approved by Parliament. Its tariff-based assessment does not import common-law damages principles. The sexual-offence provision does not extend entitlement to an applicant who did not exist and was not the victim when the offence occurred.

M was sexually abused by her father, who raped her and thereby conceived Y. Y was born with a serious genetic disorder probably caused by the incestuous intercourse. M received compensation under the 1990 Scheme for the crimes committed against her.

Y’s claim under the Criminal Injuries Compensation Scheme 2008 was rejected by the First-tier Tribunal, which followed the reasoning in Millar. On judicial review, the Upper Tribunal reversed that decision and held that Y was eligible for compensation. The Criminal Injuries Compensation Authority appealed.

The appeal concerned whether a child conceived after the relevant crime could have sustained a personal injury directly attributable to it, and whether the sexual-offence provisions permitted such a claim.

1. Appeal allowed. The Court of Appeal restored the First-tier Tribunal’s dismissal of Y’s claim. The decision was unanimous: McFarlane LJ and Henderson LJ agreed with the judgment of Sir Brian Leveson P.
2. The 2008 Scheme is governed by the Criminal Injuries Compensation Act 1995. Since it was required to be laid before Parliament and approved by both Houses, it must be interpreted using ordinary principles of statutory construction. Earlier descriptions of the scheme as a governmental announcement to be understood by a reasonable and literate person no longer provide a different interpretative standard. The tariff-based assessment of compensation also means that common-law damages models are not imported, although entitlement remains a question of construction of the Scheme.
3. The requirement in paragraph 8 that an applicant must have sustained a personal injury in and directly attributable to a crime of violence presupposes an existing victim and an altered state capable of comparison with a pre-injury state. Y had not been conceived when the rape occurred. He therefore could not have sustained an injury as its victim. His genetic inheritance made him the unique person he was, so it was impossible to posit an uninjured version of Y against which his condition could be measured.
4. The related wording of paragraph 9(c) did not enlarge the class of victims. A claimant seeking compensation for a sexual offence must have existed and been the non-consenting victim of that offence when it occurred. Y’s complaint was in substance one of wrongful existence, which the law could not recognise or quantify as a personal injury claim. The Authority had conceded direct attribution of Y’s disability to the act, so the court did not decide that issue.
5. The fundamental analysis in Millar remained sound, although aspects of that decision based on developments in the common law no longer fitted the 2008 Scheme. The Upper Tribunal was wrong to rely on everyday language alone without adequate reasoning.
6. Obiter, the court considered that the Secretary of State should address the difficulties faced by mothers caring for disabled children born as a result of sexual violence. It was difficult to see why the common-law approach in Parkinson should not be incorporated into the Scheme.

• Court of Appeal (Civil Division) — The appeal was allowed and the First-tier Tribunal’s order was restored: [2017] EWCA Civ 139.
• Upper Tribunal (Administrative Appeals Chamber) — On 25 April 2016, Judge H Levenson allowed Y’s judicial review appeal and concluded that he was eligible for compensation. Permission to appeal was granted on 19 May 2016.
• First-tier Tribunal — On 20 March 2014, the tribunal dismissed Y’s appeal and held that he had not suffered an injury within the 2008 Scheme.