IN THE UPPER TRIBUNAL	Case No.  JR/1127/2009
ADMINISTRATIVE APPEALS CHAMBER

Before:		   Judge E A L Bano

Attendances:

For the Appellant:	Mr Hanif Mussa, of Counsel (instructed by the Free Representation Unit)

For the Respondent	Mr Russell Fortt of Counsel (instructed by the Treasury Solicitor)

Decision:  My decision is to make an order quashing the decision of the First-tier Tribunal.  I remit the claimant’s appeal to the First-tier Tribunal to reconsider the matter and to reach a decision in accordance with my findings below.

REASONS FOR DECISION

1.  By her claim for judicial review the claimant seeks to quash the decision of the First-tier tribunal dismissing her appeal against a decision of the Criminal Injuries Compensation Authority (“the Authority”) making a nil award in respect of injuries which the claimant alleges she sustained in the course of an assault on 6 September 2003.  The issue in these proceedings is whether the tribunal erred in law in upholding the Authority’s decision to withhold an award of compensation under paragraph 13(b) of the Criminal Injuries Compensation Scheme 2001, which provides that “a claims officer may withhold or reduce an award where the claims officer considers that:

the applicant failed to co-operate with the police...in attempting to bring the assailant to justice.”

Permission to proceed with the application was given by Upper Tribunal Judge Mark Rowland on 6 July 2009.

2.  In her claim for compensation, which was received by the Authority on 11 August 2005, the claimant stated that on the night of 5-6 September 2003 she was staying at a house in Rhyl which was the home of a man whom I shall refer to as R.  According to the claimant, two women, one of whom had worked for R as a cleaner, came to the house and threatened R with a bottle and a knife.  After leaving R’s bedroom, the women (whom I shall refer to as H and J) caught sight of the claimant in the bathroom.   The claimant’s statement continued:

“I was then subjected to a vicious attack which involved what I would call “a routine of torture”.  I sustained a severe blow (to) the left side of my head, which was caused by [J] hitting me with metal legs of a stool.  The two women attempted to strangle me and I had difficulty swallowing for approximately three weeks after the attack.  The two women pulled clumps of hair from my head and bent my spine forwards.  A piece of glass was embedded in one of my right toes.  I also sustained bruising to my ribs and left knee.” 

3.  In response to a call from the claimant on the morning following the incident, a police officer went to the house and took a statement from her which he recorded in his notebook.  The claimant identified H as one of her attackers and, after describing the assault, she continued:

“At this time I do not wish to make an official complaint against [H] and her friend.  But I do want an officer to speak to them and instruct them that there will be a complaint of harassment made against them both if they harass me again, or any members of her family or friends.”

The police officer later interviewed H, who alleged that the claimant had started the fight and that she had acted in self-defence. The officer concluded his report by requesting that the case be classified as “undetected”, as there were no independent witnesses and both women were blaming each other, but the case was eventually in fact classified as “detected”. 

4.  On 21 October 2005 the Authority wrote to the claimant’s solicitors rejecting the claim under paragraph 13(b) of the Scheme, and on 14 March 2006 the claimant applied for that decision to be reviewed.  In her review application the claimant stated that she had been bullied by R not to tell the police about the incident, and that she had made it clear to the officer that she wanted to record the assault and for it to be treated as a crime scene.  She also stated that the police officer had asked her if she wanted the two women to be arrested, but that she was in a state of confusion and frightened that the two women would attack her again.  The claimant alleged that the statement which she had given to the officer had been written in pencil and that she was not asked to approve the contents of the notebook before being asked to sign it.

5.  The police officer was invited to comment on the review application, and in a letter dated 4 August 2006 he specifically denied each of the claimant’s allegations about the conduct of the interview.  He stated that the claimant was not contacted after the initial interview because she had signed the statement in his notebook to the effect that she did not want to take any further action against her assailants.  On the basis of that evidence, the decision not to make an award of compensation was maintained on review.

6.  At the hearing of the appeal, on 9 February 2009, the claimant and the officer gave evidence, although the claimant was not represented.  The tribunal made a number of findings of fact deciding each of the issues in dispute between the claimant and the officer adversely to the claimant, but they also found that that the claimant “was presented with options as to action that could be taken by the Police”.  The tribunal then gave the following reasons for dismissing the appeal:

•	The Officer’s original notebook was produced and the entries examined by all parties to the hearing.  The Tribunal was satisfied as to their accuracy and truthfulness and were the original entries made by the officer and signed by the appellant
•	The appellant was unwilling to give evidence against her alleged assailants
•	The police investigation and prosecution were discontinued as a result of this.
•	Medical evidence shows that the Appellant only visited her General Practitioner 3 days after the incident and then only complained of “injuries to her head and neck-abrasion and bruising”.  She did not visit him again until 3 months later.”
7.  In a claim form dated 12 May 2009 the claimant sought permission to make an application for judicial review of the tribunal’s decision.   Following Judge Rowland’s grant of permission to proceed with the application, the tribunal filed an acknowledgement of service, attaching by way of an addendum to the written reasons a note of the evidence given by the claimant and the police officer.  The Authority, as Interested Party, submitted detailed grounds of resistance on 11 August 2009, but the tribunal has played no further part in these proceedings.

8.  Mr Mussa submitted that a person can only fail to co-operate with another person if he or she refuses to comply with a request from that person to work to a particular end, or to take some preferred course of action.  In the absence of such a request being made, or a preference being expressed, there cannot be a failure to co-operate.  The structure of paragraph 13 suggests that it is for the authorities to decide how to bring an offender to justice and that it is only if a person fails to co-operate with the police in the steps which they propose to take once that decision has been made that there are grounds for refusing or reducing an award under paragraph 13.  Mr Mussa also submitted that the tribunal erred in assuming that “attempting to bring the assailant to justice” meant that the claimant’s co-operation must result in a full criminal investigation and prosecution.

9.  Mr Fortt submitted that on the basis of the police officer’s notebook entry the tribunal was entitled, and indeed bound, to conclude that, because the claimant did not wish to make an official complaint, she had made it clear at the outset that she would not be willing to co-operate in a criminal investigation and prosecution, and thus that she would be unwilling to provide a witness statement or give evidence at any trial of her assailants.  The prospects of obtaining a conviction without the support of the victim of the crime would render any prosecution futile, and the tribunal’s finding that the reason why a prosecution was not taken forward was the claimant’s unwillingness to co-operate with the police was therefore entirely logical.  Having reached those conclusions, the Tribunal was entitled in the exercise of its discretion to make a nil, rather than a reduced, award of compensation under paragraph 13(b) of the Scheme.

10.  In B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 the Court of Appeal upheld a Tribunal of Social Security Commissioners which held that a ‘failure’ to do something (as distinct from an ‘omission’ to do it) pre-supposes an obligation to do the act in question.  As the Guide to the 2001 Scheme points out in paragraph 1 of Part 4, compensation for an injury caused by a violent crime is an expression of public sympathy and support for innocent victims of crime, and in my judgment the obligation which underlies paragraph 13(b) is an obligation to co-operate with the police to the extent and in the manner reasonably to be expected of a person making a claim for an ex gratia compensatory payment at public expense-see R v CICB ex parte Thompstone and Crowe [1984] 1 WLR 1234.    In deciding whether there has been a failure to co-operate with the police for the purposes of paragraph 13(b), it will therefore be relevant to compare what the claimant actually did to co-operate with the police with the co-operation reasonably to be expected of a person making a claim under the Scheme.

11.  In my judgment, the obligation to co-operate with the police which underlies paragraph 13(b) extends considerably beyond the limits contended for by Mr Mussa.  Information given to the police in the immediate aftermath of a crime is often of crucial importance in securing the apprehension and successful prosecution of an offender, and I do not accept that a person making a claim for compensation does not come under any obligation to co-operate with the police until such time as the police have made a specific request to the victim to act in a particular way, or have identified a preferred course of action for dealing with the alleged offence.  A properly informed decision on how to deal with an offence can indeed often only be made if the victim of a crime has already given his or her full co-operation to the police or prosecuting authorities prior to the point at which that decision is made.  I also agree with Mr Fortt that a person who makes it clear at the outset of an investigation that he or she will not make a statement, or give evidence in the event that the police wish to prosecute the offender, cannot be said to have co-operated with the police in attempting to bring the assailant to justice.

12.  On the other hand, I accept Mr Mussa’s submission that the fact that a full criminal investigation and trial have not taken place does not necessarily mean that a claimant has failed to co-operate in “attempting to bring the assailant to justice”.  In a CICAP case, Re Stevens, reported at [2001] CLY 37, the victim of an assault by a 17 year old pupil in a special school told the police that he did not want the pupil prosecuted because it was unlikely that the pupil would understand the trial process.  In allowing an appeal against a refusal of an award under paragraph 13(b), the Panel accepted the claimant’s submission that the words “attempting to bring the assailant to justice” are wider than “attempting to bring the assailant to trial”.  I respectfully agree with the Panel that justice does not necessarily require all assailants to be charged or brought to trial, and that the decision as to how an offender should be dealt with is one for the discretion of the police and prosecuting authorities.  In my view, what paragraph 13(b) requires is that the claimant should co-operate with the normal processes for investigating crime and dealing with offenders, irrespective of what course of action is ultimately chosen by the authorities as appropriate in the circumstances of the particular case.

13.  In her grounds of appeal to the tribunal the claimant stated that the police officer who took a statement from her on 6 September 2003 had given her “...a choice of options, each of which was presented as a valid option....There was no indication that this choice (presented as a valid option) would mean the long term consequences would be any loss of my right to justice”.  Although the police officer disputed much else of what the claimant said, he agreed before the tribunal that he had explained the options open to the appellant concerning her alleged assault, and the tribunal made a finding to that effect.  Having made that finding, in my judgment the requirement for the tribunal to give adequate reasons for their decision placed them under an obligation to explain why they rejected the claimant’s case that, in choosing one of the options which had been presented to her by the police officer as valid choices, she had done what was required of her to co-operate with the police in attempting to bring her assailants to justice.

14.  In Re M (a child) [2005] CLY 27 the mother of a 14 year old child who had been assaulted by an adult reported the matter to the police promptly and was given the choice of pursuing a formal prosecution against the assailant or requesting that he be given a caution and an explanation that his behaviour had been unacceptable.   The child’s claim was rejected under paragraph 13(b) because his mother had chosen the latter option, but the Panel nevertheless allowed the child’s appeal on the basis that the choice made by his mother had been one of the two options given to her by the police officer.  Mr Fortt sought to distinguish Re M on the ground that both of the options presented to the claimant’s mother in that case had been valid options within the criminal justice system.  Although the tribunal in this case did not investigate what options were in fact offered to the claimant, I am not prepared to assume that any of the courses of action identified by the police officer fell outside the range of possible and appropriate measures for bringing the claimant’s assailants to justice.  I respectfully agree with the Panel in Re M that a person who simply expresses a preference for one of a number of possible ways of dealing with an offender cannot be said to be failing to co-operate with the police, unless the person also indicates that he or she does not intend to play their proper part in whatever course of action is ultimately considered to be appropriate by the police or prosecuting authorities.

15.  However, I do not accept Mr Fortt’s submission that, because the claimant said that she did not wish to make an official complaint, the tribunal were bound to conclude that she would play no further part in attempting to bring her assailants to justice.  That submission seems to me to ignore the fact that the claimant preceded her statement that she did not wish to make an official complaint with the important qualification that she did not wish to do so “at this time”.  It also fails to take into account the evidence suggesting that the police investigation proceeded in the normal way even after the claimant said that she did not wish to make an official complaint.  The police officer interviewed the person who had been identified by the claimant as one of her assailants and, contrary to what the officer said in his letter of 4 August 2006, the police records show that he did in fact contact the claimant again after speaking to H. Although the officer’s attitude to the claimant clearly hardened very considerably after she made allegations of impropriety about the conduct of the interview in her review application, in his first report he stated that there was no evidence that the claimant had not fully co-operated with the investigation, and in answer to the question: “Did the applicant make a statement?”, he answered “Not required”.

16.  I also consider that the tribunal’s conclusion that the police investigation and prosecution were discontinued as a result of the claimant’s unwillingness to make an official complaint is not supported by the evidence.   As Judge Rowland pointed out in his grant of permission to apply for judicial review, there could have been a number of reasons why the police decided to take no further action after interviewing H. The police computer records indicate that the reason why no further action was in fact taken against H and J was that the claimant and H were both blaming each other and because there were no independent witnesses to the incident.  In the absence of any proper explanation by the tribunal for their finding, I respectfully agree with Judge Rowland that there is no support for the tribunal’s conclusion that the investigation and prosecution of the claimant’s assailants were discontinued because she was unwilling to give evidence against them.   

17.  For the reasons which I have given, I do not consider that the tribunal’s reasons properly address the central issue raised by the claimant in her appeal, that is, whether she did what was required of her to co-operate with the police in attempting to bring her assailants to justice by choosing one of a number of options which were presented to her by the police officer.   Having also concluded that the tribunal’s findings of fact are not supported by the evidence, I must accept Mr Mussa’s submission that their decision must be held to be error of law as being irrational. At the commencement of the hearing I gave Mr Mussa permission to argue an additional ground, namely, that the tribunal’s final reason for dismissing the claimant’s appeal, concerning her medical care after the incident, was irrelevant to any question which the tribunal had to decide.  Mr Fortt submitted that an irrelevant reason for the tribunal’s decision was of no consequence if the other reasons were valid, but since I have rejected that submission I hold the tribunal’s decision to be in error of law on the additional ground also.

18.  I therefore quash the tribunal’s decision, and since I am not in a position to substitute my own findings for those of the tribunal, I remit the appeal for reconsideration by the First-tier tribunal.  The issues for the new tribunal to decide in relation to whether the claimant failed to co-operate in attempting to bring her assailants to justice should be clear from what I have said above, but if the tribunal decides that question adversely to the claimant, it will need to decide as a separate question whether to withhold or reduce any award.  Although the discretion to do so is very broad and the tribunal will be able to take into account all relevant considerations, as with any judcial discretion the primary facts on the basis of which the discretion is exercised must be clearly found.

19.  For those reasons, my decision is as set out above.   

			(Signed)			E A L BANO
Judge of the Upper Tribunal

			(Dated)			25 October 2010