Jones v First Tier Tribunal & Anor [2013] UKSC 19

Mr Jones, a gritter driver, was gravely injured when a lorry braked to avoid a man who ran onto the carriageway intending suicide. The First-tier Tribunal found no section 20 offence proved. The Supreme Court allowed CICA's appeal, holding the Court of Appeal wrongly interfered with a factual finding.

Facts

On 18 January 2005, at about 2.20 am, Mr Gareth Jones was driving a Highways Agency gritter northbound on the A282 near the Dartford Crossing. Slightly ahead, in the central lane, was an articulated lorry driven by Mr Brian Nash. Mr Barry Hughes ran from a car parked on the hard shoulder into the central lane, turned towards the lorry, stood in its path and raised his arms. Mr Nash braked but struck and killed him instantly. The braking caused the rear nearside corner of the lorry to swerve into the gritter’s path. The gritter’s cab was destroyed, Mr Jones was thrown onto the roadway and suffered very severe injuries requiring full-time care. The inquest returned an open verdict, but the obvious inference was that Mr Hughes intended to kill himself.

Acting by his mother, Mrs Maureen Caldwell, Mr Jones applied to the Criminal Injuries Compensation Authority (“CICA”) under the Criminal Injuries Compensation Scheme 2001. Paragraph 8 of the Scheme confines compensation to injury “directly attributable to” (among other things) “a crime of violence”. CICA refused an award, unable to identify a crime of violence of which Mr Jones was a victim.

On appeal to the First-tier Tribunal (“FTT”), it was argued that Mr Hughes had committed offences under section 22A of the Road Traffic Act 1988 and section 20 of the Offences against the Person Act 1861. The FTT rejected both; the section 22A point was not pursued further. As to section 20, the FTT was “not satisfied” that Mr Hughes intended to cause harm or was reckless as to whether harm might be caused when he ran into the carriageway. The Upper Tribunal (Nicol J, Judge Sycamore and Upper Tribunal Judge Mesher) dismissed judicial review, holding the finding was one a rational tribunal could reach. The Court of Appeal (judgment delivered by Patten LJ) allowed Mr Jones’s appeal and remitted the matter to a differently constituted FTT. CICA appealed to the Supreme Court.

Issues

The issues as the Supreme Court analysed them were:

• Whether an offence contrary to section 20 of the 1861 Act necessarily constitutes a “crime of violence” for the purposes of the Scheme.
• Whether the FTT had in fact decided the case on the basis that no section 20 offence was committed (a question of fact), or on the basis that no crime of violence occurred (which Patten LJ regarded as a question of law).
• Whether the Court of Appeal was entitled to identify an error of law in the FTT’s reasoning and so interfere with its decision.
• Ancillary to these, the proper allocation of responsibility between specialist tribunals and appellate courts in developing a consistent approach to the expression “crime of violence”.

Arguments

For Mr Jones it had been contended below that the FTT applied too narrow a test to recklessness, that it wrongly relied on the evidence of PC Sexton (who was said not to be qualified to say whether a person intent on suicide blanks out the possibility of harm to others), and that reliance was placed on an apparently inconsistent FTT decision in Fuller v Criminal Injuries Compensation Authority (unreported) 4 May 2010, where on substantially similar facts recklessness had been found. CICA’s counsel in the Court of Appeal had submitted, in relation to Fuller, that the question being one of fact, tribunals could on the same facts decide either way – a submission Patten LJ found unattractive. Before the Supreme Court the appeal was argued on the assumption that the FTT had found a section 20 offence committed, the issues being whether such an offence necessarily, or on these facts could, amount to a crime of violence.

Judgment

The Supreme Court unanimously allowed CICA’s appeal. Lord Hope gave the lead judgment; Lord Carnwath gave a concurring judgment; Lord Walker, Lady Hale and Lord Sumption agreed with both.

Mens rea under section 20

Lord Hope traced the law from R v Cunningham [1957] 2 QB 396 and R v Mowatt [1968] 1 QB 421, where Diplock LJ held that “maliciously” imports awareness that the act may cause some physical harm, approved by the House of Lords in R v Savage; DPP v Parmenter [1992] 1 AC 699 (Lord Ackner at p 752). The requirement is that the defendant actually foresaw some physical harm to some person, though not necessarily harm of the gravity that occurred.

“Crime of violence”

Reviewing R v Criminal Injuries Compensation Board, Ex p Clowes [1977] 1 WLR 1353, R v Criminal Injuries Compensation Board, Ex p Webb [1986] QB 184 and [1987] QB 74, C, Petitioner 1999 SC 551 and R (August) v Criminal Injuries Compensation Appeals Panel [2001] QB 774, Lord Hope endorsed Lawton LJ’s approach in Webb, that it is the nature of the crime, not its consequences, that matters. He identified two questions built into the phrase: first, whether a criminal offence has been committed; second, whether, having regard to the nature of the criminal act, it was a crime of violence. On the first, he held it is a question of fact for the tribunal, having informed itself of the law. On the second, in this instance the statute admitted of only one answer:

“The crime that section 20 defines will always amount to a crime of violence for the purposes of the scheme for compensation for criminal injury.” (Lord Hope, para 18)

He also questioned Buxton LJ’s description in August of the matter as a “jury question”, preferring to say it is for the deciding tribunal to consider whether the words apply to the facts proved, and that “[a]n appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals” (para 16).

The flaw in the Court of Appeal’s approach

Decisively, Lord Hope held that the Court of Appeal had misread the FTT’s decision. Fairly read, the FTT had failed at the first stage: it was not satisfied that Mr Hughes actually foresaw that his behaviour might cause physical harm, so no section 20 offence was proved and the crime-of-violence question never arose. Patten LJ had wrongly assumed the FTT decided the case on the crime-of-violence ground, and had attributed to the FTT a holding that the act “could not” amount to a crime of violence when it had in fact found that it “was not” a hostile act directed towards a person injured – a conclusion of fact open to it.

Lord Hope emphasised judicial restraint in reviewing tribunal reasons: the appellate court “should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it” (para 27). PC Sexton’s evidence had been elicited in cross-examination by Mr Jones’s own counsel and his comment on the unusualness of such extensive injuries was not outside his expertise. The Court of Appeal had been unduly influenced by its own view that anyone running into motorway traffic would at least foresee the possibility of an accident: “The question whether Mr Hughes did actually foresee this possibility was for the FTT to answer, not the Court of Appeal” (para 28). No error of law had been demonstrated, and the appeal was allowed with the FTT’s decision restored.

Lord Carnwath’s concurrence

Lord Carnwath explained the procedural route (judicial review transferred to the Upper Tribunal under section 18(6) of the Tribunals, Courts and Enforcement Act 2007 pursuant to the Lord Chief Justice’s Practice Direction of 29 October 2008). He addressed the apparent inconsistency with Fuller: the summary reasons in that case showed the tribunal had asked whether the offender “should have foreseen” harm, a misreading of Lord Ackner’s words in Savage, when actual foresight is required. Had those reasons been before the Court of Appeal, the apparent inconsistency would not have troubled it. Drawing on Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 and Lawson v Serco [2006] ICR 250, he observed that the law/fact boundary involves considerations of expediency and relative competence, and concluded that developing a consistent approach to “crime of violence” within the scheme “was a task primarily for the tribunals, not the appellate courts”.

Implications

The decision confirms two points of substance. First, an offence under section 20 of the 1861 Act will always be a crime of violence for Scheme purposes – a helpful clarification for claimants and CICA alike, though on these facts it made no difference because no offence was proved. Secondly, and more importantly in practice, whether the mens rea of a relevant offence is established is a question of fact for the FTT, reviewable only for error of law or irrationality.

The judgment is a strong statement of appellate restraint in tribunal cases. Reasons of specialist tribunals are to be read fairly and as a whole, without assuming misdirection from compressed reasoning. Appellate courts must not substitute their own view of what an actor probably foresaw. Lord Carnwath’s observations on the allocation of responsibility for developing structured guidance to the Upper Tribunal reflect the architecture of the 2007 Act; while supportive of a flexible approach to “points of law”, he expressly said it was “unnecessary to consider further the working out of these thoughts”, so those remarks are not a definitive restatement of the law/fact boundary.

The case matters to CICA claimants and practitioners in the criminal injuries field, to tribunal users generally, and to those advising on appeals from the First-tier Tribunal. It also illustrates a practical point: the absence of written reasons in Fuller (which under rules 33 and 34 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 need not be produced unless requested within a month) generated a misleading appearance of inconsistency, underlining the value of requesting written reasons where inconsistency may be argued.

Verdict: Appeal allowed. The Supreme Court unanimously allowed the Criminal Injuries Compensation Authority’s appeal, set aside the Court of Appeal’s order granting judicial review and remitting the matter, and restored the decision of the First-tier Tribunal that the terms of the Criminal Injuries Compensation Scheme 2001 did not permit an award of compensation to Mr Jones.

Source: Jones v First Tier Tribunal & Anor [2013] UKSC 19