Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber)

Annex B to the Criminal Injuries Compensation Scheme 2012 is, so far as possible, determinative of whether a criminal offence is a crime of violence. Earlier authority remains contextually useful, but the tribunal must apply the Annex to the facts found.

An act within paragraph 2(1)(b) must be of a violent nature and cause physical, rather than purely psychological, injury. A sexual assault within paragraph 2(1)(d) requires touching. Online sexual offending without touching is therefore outside those limbs. It can found a claim only where it causes fear of unlawful and immediate violence from the perpetrator under paragraph 2(1)(c).

Two judicial-review applications raised the availability of compensation for psychological injury caused by online sexual grooming and sexual communications. In RC, the First-tier Tribunal allowed a claim after treating coercive online conduct as both an act of a violent nature and a sexual assault. In RN, a differently constituted First-tier Tribunal upheld the Authority’s refusal because, although sexual and threatening messages caused some fear, they did not cause fear of immediate violence.

The common issue was whether conduct occurring online could amount to a crime of violence under the Criminal Injuries Compensation Scheme 2012, particularly Annex B paragraphs 2(1)(b), (c) and (d).

1. The Authority’s application in RC was allowed; RN’s application was refused. Annex B is not merely explanatory guidance. Read with paragraph 4 and the Scheme as a whole, it provides a definitive and limiting list, so far as possible, of crimes of violence.

2. The tribunal must first decide whether the facts disclose a criminal offence and then decide, using Annex B, whether that offence is a crime of violence. Earlier authorities remain useful in construing the expression of a violent nature, but the nature of the criminal act, rather than its consequences, is decisive. Consequences may assist only insofar as they illuminate the immediate nature of the act.

3. Paragraph 2(1)(b) requires physical injury. The Scheme consistently distinguishes physical from mental injury, and psychological injury alone does not satisfy that limb. The Scheme does not incorporate the Sexual Offences Act 2003. Nevertheless, in its context, a sexual assault under paragraph 2(1)(d) requires touching. It does not extend to an attempted assault or online sexual conduct without touching.

4. Online conduct may fall within paragraph 2(1)(c), but only where the victim fears unlawful and immediate violence from the perpetrator in circumstances capable of causing such fear to a person of reasonable firmness. Remote fears do not suffice.

5. In RC, there was neither physical injury for paragraph 2(1)(b), fear of immediate violence for paragraph 2(1)(c), nor a sexual assault involving touching. The FTT’s contrary conclusion was quashed and the claim was refused. In RN, the FTT’s finding that RN did not fear immediate violence was rational and stood; the claim remained outside the Scheme.

• Upper Tribunal: The Authority’s judicial-review application concerning RC was allowed. The FTT decision was quashed and remade so that the compensation claim was refused. RN’s judicial-review application was refused and the FTT decision stood.
• First-tier Tribunal (Social Entitlement Chamber): In RC, the Manchester tribunal allowed the appeal on 27 February 2019 under C/1019/17/00064. In RN, the East London tribunal upheld the Authority’s refusal on 5 February 2020 under C/1021/19/00305.