Factual and Procedural Background
In the early hours of 18 January 2005 a fatal road incident occurred on The Highway, a six-lane carriageway linking a major river crossing with a motorway. The driver of a gritting vehicle (“Appellee”) was travelling in the nearside lane. Ahead, an articulated lorry driven by “Individual B” was in the centre lane. “Individual A”, having parked a car on the hard shoulder, suddenly ran into the lorry’s path apparently intending self-harm. Individual A was struck and killed. The lorry swerved, collided with the gritter and destroyed its cab, throwing Appellee onto the carriageway and leaving him catastrophically injured.
On 17 May 2007 Appellee, acting through his mother (“Individual C”), applied to “Entity A” (the Criminal Injuries Compensation Authority) for compensation under the Criminal Injuries Compensation Scheme 2001. Entity A refused because no identifiable “crime of violence” had been established.
Appellee appealed to the First-tier Tribunal (“FTT”), contending that Individual A’s actions constituted:
- Interference with a motor vehicle contrary to section 22A Road Traffic Act 1988, and/or
- Inflicting grievous bodily harm contrary to section 20 Offences Against the Person Act 1861 (“OAPA”).
On 8 May 2009 the FTT dismissed the appeal, finding insufficient evidence that Individual A possessed the mens rea of recklessness required for a section 20 offence and therefore holding that no relevant crime of violence had occurred.
Appellee sought judicial review in the Upper Tribunal, which on 11 June 2010 upheld the FTT’s decision. Permission to appeal was refused by the Upper Tribunal but granted by the Court of Appeal, which on 12 April 2011 quashed the FTT decision and remitted the matter for reconsideration of recklessness. Entity A now appealed to the Supreme Court, resulting in the present judgment.
Legal Issues Presented
- Whether the First-tier Tribunal erred in law in concluding that Individual A did not commit an offence under section 20 OAPA because the requisite recklessness was not proven.
- Whether an offence under section 20 OAPA is, by its nature, always a “crime of violence” for the purposes of the Criminal Injuries Compensation Scheme.
- The extent to which an appellate court may revisit factual findings made by specialist tribunals within the statutory tribunal system.
Arguments of the Parties
Appellant (Entity A)
- Maintained that the FTT’s finding on recklessness was a rational conclusion open on the evidence and disclosed no error of law.
- Contended that the Court of Appeal impermissibly substituted its own factual assessment for that of the specialist tribunal.
Appellee
- Argued that the FTT applied an unduly narrow test for recklessness and failed properly to infer foresight of harm from the circumstances.
- Submitted that the tribunal gave improper weight to opinion evidence from a police officer who lacked relevant expertise on suicidal intent.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Parmenter [1992] 1 AC 699 |
Mens rea for section 20 OAPA: intention or actual foresight of some physical harm. |
Confirmed that FTT correctly directed itself as to the legal test for recklessness. |
| R v Mowatt [1968] 1 QB 421 |
Meaning of “maliciously” in section 20: foresight of risk of some harm. |
Relied on to demonstrate that section 20 does not require foresight of grievous harm. |
| R v Cunningham [1957] 2 QB 396 |
General definition of statutory recklessness (intention or foresight of harm). |
Cited in historical discussion of mens rea development. |
| R v Savage; DPP v Parmenter [1992] 1 AC 699 |
House of Lords approval of Mowatt; distinction between foreseeability of some harm and serious harm. |
Reinforced the governing test applied by the FTT. |
| R v Criminal Injuries Compensation Board, Ex p Clowes [1977] 1 WLR 1353 |
Early judicial attempts to define “crime of violence.” |
Reviewed as part of Scheme interpretation history. |
| R v Criminal Injuries Compensation Board, Ex p Webb [1986] QB 184 / [1987] QB 74 |
Emphasised examining the nature of the crime rather than consequences. |
Taken as leading authority on the phrase “crime of violence.” |
| C, Petitioner 1999 SC 551 |
Distinction between nature of act and its consequences in assessing violence. |
Supported tribunal-centred fact-finding approach. |
| R (August) v CICA [2001] QB 774 |
Confirmed Ex p Webb and labelled the issue a “jury question.” |
Discussed in relation to tribunal competence. |
| Reg v Martin (1881) 8 QBD 54 |
Illustration of indirect application of force amounting to violence. |
Cited to show that section 20 acts are inherently violent. |
| Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 |
Flexibility in characterising issues as fact or law on policy grounds. |
Quoted in separate concurrence on tribunal appellate functions. |
| Lawson v Serco [2006] ICR 250 |
Classification issues may be legal questions but attract deference to tribunal fact-finding. |
Used to underline limits of judicial intervention. |
| In re Grayan Building Services Ltd [1995] Ch 241 |
Degree of appellate deference varies with issue type. |
Referenced in discussion on appellate standards. |
| Cozens v Brutus [1973] AC 854 |
Illustrated ordinary meaning approach to statutory words. |
Mentioned in concurrence regarding law-fact divide. |
Court's Reasoning and Analysis
“Judge Hope”, delivering the leading opinion, held that the Court of Appeal mischaracterised the FTT’s decision. The FTT’s primary question was whether a section 20 offence had been proved; it concluded it had not because it was not satisfied that Individual A actually foresaw the risk of injury to others. That finding was one of fact, made after correctly directing itself on the governing law and considering all available evidence.
The Court of Appeal had assumed that the FTT accepted a section 20 offence occurred but nonetheless found no “crime of violence,” thereby framing a pure question of law. That assumption was erroneous; the FTT never reached the “crime of violence” stage because the prerequisite crime was unproven. Moreover, the appellate court impermissibly substituted its own inference—namely that anyone stepping into motorway traffic must foresee harm—for the tribunal’s evidential assessment. Such re-evaluation exceeded the proper scope of judicial review absent any demonstrated misdirection of law.
“Judge Carnwath” concurred, emphasising that Parliament vested development of consistent principles under the Scheme primarily in the specialist tribunals. Issues like “crime of violence” involve evaluative judgments that appellate courts should disturb only where clear legal error exists. He traced statutory reforms and academic commentary supporting a flexible approach to distinguishing questions of law from fact, reinforcing deference to tribunal expertise.
Holding and Implications
APPEAL ALLOWED. The Supreme Court reinstated the First-tier Tribunal’s decision, thereby denying compensation to Appellee under the Criminal Injuries Compensation Scheme 2001.
Implications: The judgment confirms that (i) proof of an offence under section 20 OAPA requires evidence of actual foresight of harm, (ii) such proof is a factual matter for specialist tribunals, and (iii) appellate courts must respect tribunal findings unless genuine legal error is identified. While the Court re-affirmed that any established section 20 offence would inherently be a “crime of violence” under the Scheme, it clarifies that no award can be made where the underlying crime itself is not proved. The decision strengthens tribunal autonomy and sets limits on appellate intervention, but it does not alter substantive criminal or compensation law.