Criminal Injuries Compensation Authority v First-tier Tribunal & Anor

Under the Criminal Injuries Compensation Scheme 2012, whether conduct is an act of a violent nature depends primarily on the nature of the act, not its consequences. Consequences may be considered only insofar as they illuminate that nature.

Where injury results from use of a vehicle, the exception requires proof that the vehicle was used with the aim or purpose of causing injury. A tribunal must examine the alleged perpetrator’s actual state of mind, including the whole of any relevant police interview. It must also make its own findings of primary fact and must not adopt a police officer’s opinions on matters reserved to the tribunal.

The Criminal Injuries Compensation Authority sought judicial review of a First-tier Tribunal decision allowing Mr S’s appeal under the Criminal Injuries Compensation Scheme 2012. Mr S had sustained serious injuries when a cyclist, X, struck him while he was using a zebra crossing.

The First-tier Tribunal found that X had committed dangerous cycling, that the cycling was a crime of violence, and that X used the bicycle with intent to injure Mr S. It therefore held that Mr S was eligible for compensation.

The Authority contended that the tribunal had assessed violence by reference to the impact’s consequences, misapplied the vehicle-intent exception, and improperly adopted opinion evidence from the investigating police officer. The central issue was whether those errors rendered the tribunal’s decision unlawful.

1. Application granted. The Upper Tribunal quashed the First-tier Tribunal’s decision and remitted Mr S’s appeal for a fresh oral hearing before a differently constituted tribunal.

2. For Annex B paragraph 2(1)(b) of the Criminal Injuries Compensation Scheme 2012, the tribunal must decide whether the act or omission was of a violent nature. The controlling consideration is the nature of the criminal act. Its actual or probable consequences may assist only by casting light on that nature. The First-tier Tribunal’s reasoning treated the force of impact as sufficient to make dangerous cycling a violent act. That was a material error, particularly because it failed to consider X’s state of mind as part of the relevant factual picture.

3. Under Annex B paragraph 4(1)(b), an injury caused by a vehicle is excluded unless the vehicle was used with intent to cause injury. In this Scheme, intent means the user’s aim or purpose to cause injury. Criminal-law authorities concerning intention may offer limited assistance, but they must not displace the ordinary meaning and context of the Scheme.

   The First-tier Tribunal had to identify when, if at all, X formed that aim or purpose. Its finding that X did not intend harm when starting his journey made that enquiry essential. The tribunal instead focused on virtual certainty and foresight, without addressing when X’s intention changed or fully confronting his express denial of intent in the police interview. Its conclusion on intent was therefore irrational and independently determinative of the judicial review.

4. A tribunal must make its own findings on primary facts and on matters bearing on a person’s state of mind. A police officer may give factual evidence of what the officer perceived or what others said. The tribunal may evaluate that evidence, but it must not adopt the officer’s personal opinions on the accuracy of witnesses, what occurred, or what the alleged perpetrator knew or intended. By accepting and adopting PC B’s opinions on such matters, the First-tier Tribunal abdicated its fact-finding responsibility. That fundamental error rendered the decision unlawful as a whole.

• Upper Tribunal (Administrative Appeals Chamber): Allowed CICA’s judicial-review application, quashed the First-tier Tribunal decision of 23 January 2015, and remitted the compensation appeal to a differently constituted First-tier Tribunal.
• First-tier Tribunal: Allowed Mr S’s appeal against CICA’s refusal of compensation and held that he was the direct victim of a crime of violence under the Criminal Injuries Compensation Scheme 2012.
• CICA review: CICA maintained its refusal of an award after review.