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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> M, R (on the application of) v Criminal Injuries Compensation Appeals Panel [2001] EWHC Admin 720 (31 August 2001) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2001/720.html Cite as: [2001] EWHC Admin 720 |
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Case no: CO/3296/2000
Neutral Citation Number: [2001] EWHC Admin 720
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of justice
Strand,
London, wc2a 2ll
Friday 31st August 2001
Mr Peter Buckley
(instructed by Timms for the Claimant)
Mr Johnathan Swift
(instructed by The Treasury Solicitors for the
Defendant)
"[M] has made serious allegations of sexual abuse against her step-father [J]. There was no substantive evidence of penile penetration. It is believed that [M] was abused sexually over a period of 5 years. [M] states that the abuse took the form of inappropriate touching of her vagina + breasts, [J] placing his penis between her legs and masturbating. Use of sexually explicit language and pornographic material was also used. [M] states that attempted vaginal penetration with objects was also part of the abuse. Threats of serious harm were made to [M] with regard to her mother, if she did not comply with the abuse."
"Long term emotional and psychological damage, which have to date resulted in 3 very serious attempts at self-harm. [M] was accommodated by Social Services as a result of the abuse, her mother could no longer control her behaviour and feared for her safety."
"I am not satisfied on the information available that you were a victim of a crime of violence within the terms of the Scheme."
"It is the opinion of the Social Services Department, endorsed by counsel that the abuse suffered by [M] at the hands of her step-father disastrously constitutes a crime of violence and therefore falls within paragraph 8(a) of the Scheme."
"[M] is now fourteen years old. In August 1994 when she was eleven years old, [M] disclosed that she had been regularly sexually assaulted by her step-father, [J]. The abuse took a very grave form and while there is no medical evidence of penile penetration, the abuse inflicted on [M] included long-standing inappropriate touching, masturbation and attempts to penetrate her with objects. [M] explains that she was threatened with very serious harm to herself and her mother in the event of non-compliance."
"A joint Police and Social Services investigation proceeded, however the Crown Prosecution Service decided not to pursue the prosecution. Prior to this, [M]'s mother had separated from her step-father, the perpetrator of her abuse. Following the decision by the Crown Prosecution Service not to prosecute [J], [M] became deeply distressed. Her relationship with her mother deteriorated and in January 1995 she was accommodated by the local authority. She has had an extremely difficult early adolescence since then. She has demonstrated extremely disturbed behaviour and has attempted self-harm on at least three occasions and has needed to be placed in secure accommodation after several absconsions, including one from a Court hearing. It is not surprising that [M] is a deeply damaged young woman as a result of her step-father's sexual abuse of her."
He referred the Authority to a report from a social worker dated 6 June 1997.
"The local authority has supported [M]'s claim and devoted considerable resources in appealing the original decision because it is the opinion of the social workers who have assisted [M] over a number of years that she has suffered severe sexual abuse by her step-father.
In addition the level 5 award does not recognise the severe psychological damage that [M] has endured and continues to endure as a direct result of this crime of violence. [M] has undergone psychiatric assistance ever since the abuse was first investigated and has attended a number of specialist residential placements in an attempt to deal with her behavioural difficulties. Her psychological problems will impact on the rest of her life. This aspect of her injuries should be recognised.
A further psychological report will be submitted to the Board as soon as it is obtained."
"[M] has long term behavioural problems, arising out of her mother's reluctance to deny her anything and her determination to be a good mother to [M]. Nevertheless, this behavioural problem does not explain the sexual content and sexualised behaviour manifest by [M]. Her low self esteem and uncontained behaviour made her more vulnerable to sexual abuse but would not in itself cause her to become more sexualised to the extent of pursuing an interest in sexual manners, matters being preoccupied by sex and acting in an overt sexually precocious manner. These are classical symptoms of sexual abuse and in my opinion [M]'s continuing sexualised behaviour has occurred within the context of ongoing sexual abuse."
"After [M] had disclosed [in 1993] about the alleged abuse she had suffered her relationship with her mother began to deteriorate. [M] blamed her mother for not protecting her from the abuse incurred and coupled with the non-prosecution of her step-father [in 1994] she also felt let down by the system."
"From the outset [M] has proved difficult to place with her becoming increasingly more volatile, angry confrontational and aggressive. On numerous occasions she has been totally beyond control both of herself and others. Attempts to adequately address the issues of structure and direction in [M]'s life failed over and over again further causing [M] to lose hope and plummeting her into absconding, offending, prostitution [other evidence suggests that she was not involved in prostitution] and drug taking.
Attempts to contain this intelligent but deeply damaged young woman led to a rapid succession of placements and support packages, and the use of secure accommodation within the County. On each occasion [M] proved to be uncontrollable to a breaking point that was irredeemable. In Secure Accommodation [M] was seen to be extremely unhappy. She saw the placement as a punishment, but was not sure why she was being punished. It was eventually acknowledged that [M]'s needs were greater than we could provide in the County. Subsequently, an intensive therapeutic placement was sought out of the County as an attempt to address [M]'s problems in a more positive way than could be found in Secure Accommodation or any other Centre in Derbyshire."
"[M]'s early experiences of sexual abuse have deeply affected her life. [M] is very angry about the abuse she suffered and does not feel in control of her own life."
M is very volatile and easily looses control and "the use of illegal drugs to help her forget the abuse only makes matters much worse." Her "unpredictable and confrontational personality traits" have resulted in her being unable to maintain any education programme for any length of time. After stating that M "greatly needs to gain some control over her life and be provided with stability and continuity in her life, so she can address the issues relating to her abusive past" Maxine Clarry went on to write:
"[M] is now sixteen years old, and wishes to move towards independence. In my opinion this is not going to be an easy transition. [M] wishes to get a tenancy in her own right, but because of her behaviour which is directly linked to her abuse , a tenancy/landlord would be very hard to find who would be tolerant of such behaviour.
Also long term [M] wishes to go to college or obtain a job but because of her volatile behaviour her employment prospect must be bleak and she does not respond well to authority."
"[M] also described in great detail a pornographic video that she says she watched with her step-father. Her mother says that this video was not available to [M] and that there was no pornographic material available in the home to her knowledge."
"He would not accept that there was permanent mental damage as Dr Owen says there is no long term prognosis possible. He suggested a further report, however, he was chastised by the Chairman who said that he had had that statement for some time and should have thought of that earlier."
The notes read on:
"Mr Anthony Mear [in fact Meier] questioned Peter Buckley [counsel for the claimant] and challenged the fact that there was permanent mental damage but Peter Buckley went through Mr Owen's statement very carefully and explained to him that although it was very difficult to make an individuals mental disorder fit a specific description given in the tariff he did accept that there was long term problems. These long term problems had already been going on for 10 years and although there was a little improvement there was not a significant improvement to show that it was not permanent."
"Her history over the last few years clearly indicates a chaotic lifestyle, characterised by aggressive and inappropriate sexual behaviour (though not prostitution as has been suggested in other reports), serious drug abuse, self inflicted injuries and a number of overdoses. She has been extremely difficult to place and has had numerous short term placements in Social Services care. It would seem that even highly staffed and secure environments have been unable to deal with her insubordinate, aggressive and threatening behaviour."
"From her account there is a close correlation between the start of sexual abuse and deterioration in mental state and behavioural disturbance."
"There was no evidence of significant and persisting mood disturbance as might be seen in clinical depression. She showed no signs of anxiety nor psychomotor agitation. Appetite was undisturbed and sleep pattern mostly consistent, disturbed by the occasional dream of previous abuse. She did not describe frequent flashback mental images except when these were triggered by reminders of her step-father. She also describes some avoidance behaviour relating to aspects of sexual abuse or, again, anything which might remind her of her step-father.
I did not elicit any psychotic symptomatology. She did not describe auditory hallucinations nor have paranoid delusions. There were no stigmata of Amphetamine abuse. She had gained a considerable amount of weight, approximately two stone since being at her present secure address, not unusual in those recovering from Amphetamine misuse.
Cognitive functions were intact. She was orientated in time, place and person. There was no evidence of memory disturbance or attention span deficit.
I assessed her as someone of good intelligence."
"From the information available to me, I'm of the opinion that [M] has suffered serious psychological damage as a direct consequence of prolonged sexual abuse by a parent figure.
Repeated sexual abuse over a five year period with masturbatory activity, attempted penetration, the use of handcuffs and pornographic material with the ever present threat of serious harm to both her and her mother if she did not comply or disclose what was happening to others should be seen as being seriously disturbing to a child, profoundly damaging to personality development and, as in this case, likely to lead to profound emotional and behavioural problems in adulthood.
During the time when sexual abuse was occurring, she became an anxious and tearful child demonstrating inappropriate sexual activity and behaviour at school and clearly developing a mistrust of adults. Following disclosure, it seems that she became emotionally chaotic for a time before building up her own defences, taking an aggressive attitude and in particular showing an inability to deal with her own aggressive impulses towards others. There has been evidence of low esteem and self-loathing, self mutilating behaviour, impulsive overdoses, significant emotional fragility and episodes of dysphoria, rage attacks towards authority figures, and a tendency to terrorise her peers. Drugs and alcohol have been used to attempt symptom relief but have resulted in psychological complications of their own. While she does not show the full syndrome of a Post Traumatic Stress Disorder, there have been flashback experiences from time to time and some avoidance behaviour of anything which might remind her. These experiences have lessened over the years and no longer trouble her unduly.
Whilst it is not possible to predict how she might have developed as a person in the absence of sexual abuse, there is no evidence that she was subjected to any emotional deprivation or other form of abuse before the age of five years, that mother was a reasonable single parent, that [M] had no problems with her peers at junior school and was showing signs of being a confident extrovert if mischievous child. I am not aware of any family history of psychiatric illness or psychological disturbance though I am told that mother has very recently admitted to having been abused herself as a child. In all probability, had she been afforded a normal and emotionally stable up-bringing she would not have developed into a troubled and emotionally chaotic adolescent.
It is very difficult for me to give an accurate prognosis. Clearly the abuse has resulted in devastating and seemingly long-term effects. Previous professional therapeutic intervention even in high staffed and secure environments has had little long-term impact, though this last placement seems to have helped more than others. Given her labile emotions it is perhaps unwise of me to put too much emphasis on her presentation at interview with me. She appeared positive in attitude and willing to accept help. I gather these are stages she's been through before. I am concerned that she seems emotionally cut off when discussing the abuse itself and clearly her behaviour with adults and her inability to function sexually indicates that the psychological scars are not yet fading.
She does not suffer from a clinically treatable condition such as a depressive illness. Drug abuse has not resulted in persisting psychotic experiences.
She presents as an extremely emotionally unstable personality and seems ill prepared for adult responsibilities. In my opinion she will require a considerable amount of psychological support for some time to come. If problems in relationships prevent her from achieving her educational goals she may be seen as appropriate for placement in a residential therapeutic community such as those run by the Richmond Fellowship. Unfortunately her explosive tendencies may exclude her from that option.
In conclusion, I would say that prolonged and serious sexual abuse perpetrated by her step-father during much of her childhood has had a profound and devastating effect on [M], has adversely moulded her personality, leaving her emotionally unstable and dysfunctional in relationships. Given the poor response so far to engage her in therapy to address these particular problems, her future prospects seem uncertain. She has been able to engage in sexual abuse counselling and this has resulted in a reduction in flashback experiences and avoidance behaviour. I am not at all sure that she has made a satisfactory recovery yet or whether she ever will. I'm afraid that, based on progress so far and information available to me I cannot be more specific than that.
I confirm to the best of my knowledge and belief that the contents of my report and the opinions I have given are true."
"It is clear from the information available to me that [M] is currently unemployable because of her attitude and persisting behaviour. As far as I can see she has received no formal education sufficient to prepare her for her employment. Unless there is a dramatic seemingly unlikely change in her behaviour and attitude, I do not see her as having much prospect of meaningful employment for the foreseeable future."
He concluded by writing that "it is not possible to give a long-term prognosis".
"Under Paragraph 13(e) of the Scheme the Panel has to consider whether to reduce (or withhold) compensation if an Applicant's convictions which are not spent make it inappropriate that a full award should be made. Although the Applicant is young she has a long list of unspent convictions and the Panel does not consider that the drug abuse which she said her dishonesty fuelled, or her violence can be wholly excused or mitigated because she had been abused. Accordingly the Panel does not wholly disregard the Applicant's convictions. The Panel considers it is inappropriate that there should be a full award of compensation, but because of her age and her earlier experience of abuse, the reduction which has been made provides a more favourable result for the Applicant than might usually be reached with her record. The award is reduced by two-thirds.
The Panel accepted the submission that the Applicant's abuse entitled her to a level 6 [should have read 11] award of £6000. The Panel did not accept that the Applicant had a disabling mental order [sic] that was attributable to sexual abuse. Nor was it able to accept the submission that she will be unable to work and earn a living and is accordingly entitled to a substantial award for loss of earnings. She is currently trying to find work, and she has expressed an ambition to join the army. She is still not quite 17. Were she entitled to such an award the sum suggested of over £140,000 was inappropriate as no account had been taken of Paragraph 45 of the Scheme and the benefits she would receive if not working.
The Panel did not consider on the evidence given at the hearing or presented subsequently that it was reasonable to make an award to enable her to return to Middlegate Lodge. In any event were she to return there and the managers accepted her, the Panel's view was that it would be for support services to find and provide funding, and it was not reasonable for the CICA to fund it.
The award is:
Pattern of severe sexual abuse as a child £6,000
Less two-thirds under Paragraph 13(e) £4,000
Total award £2,000"
a) the rejection of the level 17 psychiatric claim;
b) the rejection of the loss of earnings claim;
c) the 2/3rds reduction.
Requirement to give reasons
"I believe it is clear that the board's reasons should contain sufficient detail to enable the reader to know what conclusion has been reached on the principal important issue or issues, but it is not a requirement that they should deal with every material consideration to which it has had regard."
"The classic statement of the standard of reasons required is to be found in Re Poyser and Mills' Arbitration [1963] 1 All ER 612 at 616,[1964] 2 QB 467 at 477-478 per Megaw J:
`The whole purpose ... was to enable persons whose property or interests were being affected by some administrative decision or some statutory arbitration to know, if the decision was against them, what the reasons for it were. Up to then, a person's property and other interests might be gravely affected by a decision of some official, the decision might have been perfectly right, but the person against whom it was made was left with the real grievance that he was not told why the decision had been made ... proper, adequate, reasons must be given; the reasons that are set out ... must be reasons which not only will be intelligible, but also can reasonably be said to deal with the substantial points that have been raised ...'
As Donaldson MR said in Union of Construction, Allied Trades and Technicians v Brain [1981] ICR 542 at 551, the reasons must `tell the parties in broad terms why they lose or, as the case may be, win
'. In every case the adequacy of the reasons must depend upon the nature of the proceedings, the character of the decision-making body and the issues which have been raised before it, particularly if they include issues of fact." (Underlining added)
"The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties--especially the losing party--should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know ... whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not."
"will be alert to ensure that the affidavit is genuinely directed at telling the Court what happened at the time the decision was taken, and not merely giving the Court an ex post facto rationalisation, which could not be admissible."
"The Court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should ... be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction."
"It is most undesirable if the reasons are not of such clarity that the Board feels impelled to seek to make a further statement to elaborate upon them or to explain them."
"It is accepted the Court may receive additional material to elaborate and expand the reasons given in a decision letter such as this, but the reasons for caution are obvious."
"I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene...".
He also said (at page 561):
"... I find in the more recent cases on judicial review a perceptible trend towards an insistence on greater openness, or if one prefers the contemporary jargon "transparency", in the making of administrative decisions.'
"Nor was it able to accept the submission that she will be unable to work and earn a living and is accordingly entitled to a substantial award for loss of earnings. She is currently trying to find work, and she has expressed an ambition to join the army. She is still not quite 17. Were she entitled to such an award the sum suggested of over £140,000 was inappropriate as no account had been taken of Paragraph 45 of the Scheme and the benefits she would receive if not working."
"Accordingly it is appropriate in this case to claim for future loss of earnings/loss of earning capacity, handicap on the labour market in view of the fact that the applicant is likely to remain psychologically and emotionally unstable for the rest of her life, thereby making her unattractive to employers."
"Also long term [M] wishes to go to college or obtain a job but because of her volatile behaviour her employment prospect must be bleak and she does not respond well to authority."
"The Panel did not accept that the Applicant had a disabling mental order [sic] that was attributable to sexual abuse."
the applicant did not have a disabling mental disorder;
the applicant had a disabling mental disorder but not attributable to the sexual abuse.
• "long term emotional and psychological damage, which have to date resulted in 3 very serious attempts at self-harm" (paragraph 4);
• "nightmares - flashbacks, nausea, poor self esteem, dysfunctional social relationships" (paragraph 5);
• "in addition the level 5 award does not recognise the severe psychological damage that [M] has endured and continues to endure as a direct result of this crime of violence. [M] has undergone psychiatric assistance ever since the abuse was first investigated and has attended a number of specialist residential placements in an attempt to deal with her behavioural difficulties. Her psychological problems will impact on the rest of her life" (paragraph 14);
• "deeply damaged young woman" (paragraph 19);
• "[M] has suffered serious psychological damage" (paragraph 27);
• "repeated sexual abuse ... should be seen as being seriously disturbing to a child, profoundly damaging to personality development and, as in this case, likely to lead to profound emotional and behavioural problems in adulthood" (paragraph 27);
• "There has been evidence of low esteem and self-loathing, self mutilating behaviour, impulsive overdoses, significant emotional fragility and episodes of dysphoria, rage attacks towards authority figures, and a tendency to terrorise her peers. While she does not show the full syndrome of a Post Traumatic Stress Disorder, there have been flashback experiences from time to time and some avoidance behaviour of anything which might remind her. These experiences have lessened over the years and no longer trouble her unduly (paragraph 27);
• "clearly the abuse has resulted in devastating and seemingly long-term effects" (paragraph 27);
• "her inability to function sexually indicates that the psychological scars are not yet fading" (paragraph 27);
• "She presents as an extremely emotionally unstable personality and seems ill prepared for adult responsibilities. In my opinion she will require a considerable amount of psychological support for some time to come" (paragraph 27);
• "... prolonged and serious sexual abuse perpetrated by her step-father during much of her childhood has had a profound and devastating effect on [M], has adversely moulded her personality, leaving her emotionally unstable and dysfunctional in relationships Given the poor response so far to engage her in therapy to address these particular problems, her future prospects seem uncertain. She has been able to engage in sexual abuse counselling and this has resulted in a reduction in flashback experiences and avoidance behaviour. I am not at all sure that she has made a satisfactory recovery yet or whether she ever will. I'm afraid that, based on progress so far and information available to me I cannot be more specific than that" (paragraph 27).
"[The Plaintiff's] claim is accordingly one for what have in the authorities and the literature been called damages for nervous shock. Judges have in recent years become increasingly restive at the use of this misleading and inaccurate expression, and I shall use the general expression `psychiatric damage', intending to comprehend within it all relevant forms of mental illness, neurosis and personality change. But the train of events (all of which must be causally related) with which this action, like its predecessors, is concerned remains unchanged: careless conduct on the part of the defendant causing actual or apprehended injury to the plaintiff or a person other than the defendant; the suffering of acute mental or emotional trauma by the plaintiff on witnessing or apprehending that injury or witnessing its aftermath; psychiatric damage suffered by the plaintiff
"(e) the applicant's character as shown by the criminal convictions (excluding spent convictions under the Rehabilitation of Offenders Act 1974) ... makes it inappropriate that a full award or any award may be made."
The reason for withholding or reducing an award is explained in paragraphs 8.15 of the scheme:
"... a person who has committed criminal offences has probably caused distress and loss and injury to other persons, and has certainly caused considerable expense to society by reason of court appearances and the cost of supervising sentences... and the victims may themselves have sought compensation ...".
Paragraph 8.16 sets out a scale of penalty points as an indicator of the extent to which unspent convictions may count against an award. Convictions after the claim is made are taken into account.
"Whilst it is not possible to predict how she might have developed as a person in the absence of sexual abuse, there is no evidence that she was subjected to any emotional deprivation or other form of abuse before the age of five years, that mother was a reasonable single parent, that [M] had no problems with her peers at junior school and was showing signs of being a confident extrovert if mischievous child. I am not aware of any family history of psychiatric illness or psychological disturbance though I am told that mother has very recently admitted to having been abused herself as a child. In all probability, had she been afforded a normal and emotionally stable up-bringing she would not have developed into a troubled and emotionally chaotic adolescent."
"[M] has long term behavioural problems, arising out of her mother's reluctance to deny her anything and her determination to be a good mother to [M]"
M had first been referred to Dr Jack's service in 1988 just before the abuse had started. M "was cheeky and provocative to her mother and was stealing pencils and rubbers from the school and lying about this" (page 202). Mr Swift accepts that the report of Dr Jack pre-dated any convictions and therefore "does not consider whether or not the convictions were the result of the sexual abuse."
"Different explanations for her behaviour were given by the 2 psychiatrists ... and the Panel did not accept that the applicant had no responsibility for her persistent criminal conduct."