RN, R (on the application of) v First tier Tribunal (Social Entitlement Chamber) & Anor

For paragraph 2(1)(c) of Annex B to the Criminal Injuries Compensation Scheme 2012, the words concerning a threat causing fear of immediate violence take their meaning from the common law of assault. The Scheme does not impose a narrower requirement.

Immediacy is assessed when the victim apprehends the threat. The victim need only fear violence at a time not excluding the immediate future, and need not know its precise form. The court also concluded, obiter, that a sexual assault within paragraph 2(1)(d) has as its minimum requirements those in section 3 of the Sexual Offences Act 2003, including touching and absence of factual consent.

The appellant was sexually groomed online by an adult, who was later convicted of attempting to cause or incite him to engage in sexual activity and attempting to meet him following sexual grooming. He claimed compensation for mental injuries under the Criminal Injuries Compensation Scheme 2012.

The First-tier Tribunal found that there had been threats and fear, but no fear of immediate violence and no sexual assault for the purposes of Annex B. Upper Tribunal Judge Gray refused permission to bring judicial review and upheld that result. The appeal concerned the proper construction of the gateways in paragraph 2(1)(b), (c) and (d) of Annex B, in particular whether the appellant had feared immediate violence.

1. Appeal allowed. Nicola Davies LJ, with whom Phillips LJ and Carr LJ agreed, held that the First-tier Tribunal and Upper Tribunal had erred in their approach to paragraph 2(1)(c) of Annex B to the Criminal Injuries Compensation Scheme 2012. Their decisions on that issue were quashed and the compensation claim was remitted to the Criminal Injuries Compensation Authority.

2. The phrase concerning a threat causing fear of immediate violence refers to common assault. There was no cogent basis for construing the Scheme more narrowly than the common law. Immediacy is assessed when the victim apprehends the threat, rather than when it is communicated. A fear of violence at a time not excluding the immediate future is sufficient.

3. The victim need not identify the exact violence threatened. It is enough that the victim fears that violence may be used. The First-tier Tribunal had wrongly required fear at the time of the underlying threat and had treated uncertainty about its precise content as decisive.

4. On the accepted evidence, the appellant had been threatened and feared that the abuser might take him away and sexually abuse him. That fear did not exclude violence in the immediate future. It would also have caused a person of reasonable firmness to fear immediate violence. The requirements of paragraph 2(1)(c) were therefore satisfied.

5. Although unnecessary to the disposal of the appeal, the court held that paragraph 2(1)(d) uses sexual assault in the sense of section 3 of the Sexual Offences Act 2003, as a minimum requirement. Touching is therefore required, together with absence of factual consent. The contrary observations in [2017] UKUT 0097 were obiter, unreasoned and not persuasive.

6. The court expressly left open whether psychiatric injury can be a physical injury for paragraph 2(1)(b). That issue was difficult but not determinative once the appeal succeeded under paragraph 2(1)(c).

• Court of Appeal (Civil Division): Allowed the appeal in [2023] EWCA Civ 882, quashed the decisions below on paragraph 2(1)(c) of Annex B to the Criminal Injuries Compensation Scheme 2012, and remitted the compensation claim to the Criminal Injuries Compensation Authority.

• Upper Tribunal (Administrative Appeals Chamber): On 7 April 2022, Upper Tribunal Judge Gray refused permission to bring judicial review of the First-tier Tribunal decision and upheld its conclusion that the appellant was not the victim of a crime of violence.

• First-tier Tribunal (Social Entitlement Chamber): On 5 February 2020, with written reasons dated 23 March 2020, dismissed the appellant’s appeal against the refusal of compensation.