IN THE UPPER TRIBUNAL               Upper Tribunal Reference No.  JR/3817/2013    
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

DECISION

1.	This application succeeds. 

2.	I QUASH the decision of the First-tier Tribunal (Criminal Injuries Compensation) (‘the Tribunal’) heard under reference no. x/10/240899 on 16 July 2013, by virtue of my powers under sections 15 to 18 of the Tribunals, Courts and Enforcement Act 2007.

3.	 I refer the matter to a First-tier Tribunal dealing with Criminal Injuries Compensation appeals for a fresh hearing and decision by a panel that does not include any judge or member who has considered this matter hitherto. 

4.	I direct that the panel hold an oral hearing of this appeal. 

REASONS FOR DECISION

1	The applicant in these proceedings for judicial review is an unsuccessful claimant of criminal injuries compensation.  A Tribunal dismissed his appeal against the decision of the Criminal Injuries Compensation Authority (‘CICA’) by which it refused to make him an award of criminal injuries compensation.  The claimant brings these proceedings with my permission.  In the Tribunal hearing, the claimant is called an appellant, whilst in judicial review proceedings, he is called an applicant.  To avoid confusion, I shall call him the claimant unless I am quoting from the Tribunal’s written reasons.   

2	The claimant thought a hearing of his judicial review matter might be necessary, but this is not the case.  The interested party does not request an oral hearing, and having seen the parties’ submissions, I am able to come to a decision in the applicant’s favour on the papers.  

3	In giving permission for judicial review of the Tribunal’s decision, my main concern was that, although the Tribunal mentioned in its decision that it had a discretion either to withhold an award of compensation in light of the applicant’s criminal convictions or, in the alternative merely reduce it, it appears not to have applied its mind to the latter option.  As I will explain more fully later, its reasoning seems to have been that the claimant had a total of at least 10 penalty points, which ‘under the Scheme’ led to a 100% reduction of the award.  The Tribunal says this in paragraph 23 of its decision.  It is not, however, the Scheme itself that requires this result, but the guidance in Appendix 5 of the Guide to the Criminal Injuries Compensation Scheme 2008.  If this was not the basis of the decision, the problem with the decision is that the Tribunal failed to explain adequately why it decided to withhold the award entirely, rather than reduce it.  

Background

4	The applicant made a claim for criminal injuries compensation under the 2008 Criminal Injuries Compensation Scheme (‘the Scheme’) following an assault on him which he says happened on 31 August 2010.  

5	A claims officer at CICA initially took the view that the applicant was entitled to an award subject to a 50% reduction for his failure to cooperate with the police in their investigation.  As will be seen, a claims officer has the power to reduce awards or withhold them entirely for various reasons under paragraph 13(1) of the Scheme.  They initially relied on paragraph 13(1)(b) to justify the reduction, but a claims officer subsequently reviewed the decision and decided not to make any award at all. 

6	I shall use the general term ‘decision maker’ to refer to both a claims officer and the Tribunal, unless the context requires otherwise.  This is because the Tribunal generally stands in the shoes of a claims officer’s when making its decisions.  

7	The applicant appealed the decision. He said it was the police who were at fault, and not him.  

8	A Tribunal hearing took place on 20 March 2013 to consider the issues raised under paragraph 13(1)(b) but it found out that the claimant had criminal convictions.  The Scheme requires CICA and the Tribunal to take into account unspent convictions in deciding the amount of an award, if any, so the Tribunal adjourned for further evidence on this issue.

9	The hearing was relisted for 16 July 2013.  A lengthy schedule of the claimant’s criminal convictions was produced to the Tribunal.  All but one of the convictions were spent.  The unspent conviction, dated 21 February 2011, was for battery against his wife.  The claimant had been sentenced for the battery on 25 May 2011 to 3 month’s imprisonment suspended for 24 months and he was also required to attend a rehabilitation programme.  

10	On 20 March 2012 the sentence was varied by removing the requirement to attend a rehabilitation programme and replacing it with a requirement to do 200 hours of unpaid work.  The 3 months’ suspended imprisonment remained in place. 

The Scheme 

11	Under paragraph 13(1)(d) of the Scheme, it was necessary for the Tribunal to consider how any award that might be made to the applicant would be affected by this unspent conviction.  The relevant paragraphs of the Scheme are as follows: 

	13 (1) 	A claims officer may withhold or reduce an award where he or she considers that: 

	(a) – (d) [Not relevant]

(e) the applicant’s character as shown by his or her criminal convictions (excluding convictions spent under the Rehabilitation of Offenders Act 1974 at the date of application or death) or by evidence available to the claims officer makes it inappropriate that a full award or any award at all be made.  

14(3) In considering the issue of character under paragraph 13(1)(e), a claims officer must withhold or reduce an award to reflect unspent criminal convictions unless he or she considers that there are exceptional reasons not to do so.

12	In addition to the provisions of the Scheme, decision makers have regard to the Guide that CICA is required to issue, under paragraph 22 of the Scheme.  The Guide deals with the procedures CICA uses in dealing with applications.  The Guide is not part of the Scheme itself but is explains how CICA deals with cases.  To that extent, it is an aid to transparent and consistent decision making.  It is not, however, binding on courts or tribunals, or, indeed, on CICA, as is made very clear in Appendix 5, paragraph 6 of the Guide.  

13	It follows that where there is a difference between the Scheme and the Guidance, the Scheme prevails. 

14	This is important where provisions of the Scheme allow a decision maker to exercise discretion in one way, while the Guide indicates that he should do so differently.  In accordance with ordinary principles of public law, if a decision maker is given free rein in exercising his discretion, he must not fetter that discretion.  He must consider all the facts and circumstances that are relevant in order to come to a fair decision.  This will plainly not be so where restrictions on the exercise of a discretion are actually written into the provisions under which it is to be exercised.  For example, the discretion given paragraph 13(1)(e) of the Scheme appears to be unfettered, but paragraph 14(3) restricts that freedom by saying that the decision maker must take into account unspent convictions.  What paragraph 14(3) does not do is tell the decision maker how the unspent convictions are to be taken into account.  

15	The Guide, however, does set out the way officers should exercise their discretion, though this can only be a starting point, at the very most, since it would otherwise represent a fetter an officer’s discretion.  The Guide acknowledges this in Appendix 5, paragraph 6.

16	Appendix 5 reads as follows: - 

1 As we explained earlier, we may refuse or reduce an award if you have a criminal record. Even though you may have been blameless in the incident, the Scheme says that we must take account of your unspent criminal convictions.

2 It is often not easy to be sure whether or not a conviction is spent under the Rehabilitation of Offenders Act 1974. The more serious the penalty the offender received, and the more recently it was given, the longer the conviction will take to be spent. …

3 The Scheme says we must reduce or refuse an award if someone has unspent convictions. When we decide to make an award to someone with a criminal record, we must use our discretion to decide what level of reduction will be appropriate. This is explained further below.

Penalty points system
4 Our current system of deciding about reductions is based on ‘penalty points’. The more recent the conviction and the more serious the penalty, the more penalty points the conviction will attract. We will then use the number of penalty points to decide what level of reduction to make. We will also take account of any convictions you receive after the incident or after applying, right through to the date when your case is finally settled. The table on the next page shows how much unspent convictions may count against an award. In all cases, we ignore spent convictions.

5 Unless there are exceptional reasons, the percentage reductions we will consider for the various levels of penalty points are as follows:

1 - 	10%
2 - 	15%
3 - 	25%
4 - 	30%
5 - 	35%
6 - 	50%
7 - 	60%
8 - 	70%
9 - 	80%
10 -	100%

6 We are not bound by the penalty-points system, but we must take account of all unspent convictions. The penalty points are our starting point, but we consider convictions and penalty points together with all the other circumstances of the application. For example, we may make a smaller reduction or no reduction at all, if you were injured while helping the police uphold the law, or while helping someone who was being attacked. On the other hand, a low points score is no guarantee that we will make an award if, for example, your record includes violent or sexual offences.

7 …
8 …

Court sentence              	 Period between the date of the sentence 	Penalty points
		              	and the date CICA receives application 

1.  Imprisonment for more than 30 months	a Period of sentence or less				10
					b More than (a) but less than sentence plus 5 years	  9
					c More than (b) but less than sentence plus 10 years	  7
					d More than sentence plus 10 years			  5

	2.  Imprisonment for more		a Period of sentence or less				10
    than 6 months but not more 		b More than (a) but less than sentence plus 3 years	  8
    than 30 months 			c More than (b) but less than sentence plus 7 years	  6
					d More than sentence plus 7 years			  2
					
3.  Imprisonment for			a Period of sentence or less				 10
     6 months or less			b More than (a) but less than sentence plus 2 years	  5
					c More than sentence plus 2 years			  2

4. Fine over £250 			a Less than 2 years from sentence			  3
					b More than (a) but less than 3 years from sentence	  2
					c More than 3 years					  1

5. Community Order, or			a Period of the order or contract or less			   3
another order or contract			b More than (a) and up to 2 years after the period		   2
made as a penalty by the court		c More than 2 years after the period of the order or contract	   1

6. Fine of £250 or less			a Up to 2 years from sentence				   2
Conditional discharge			b Over 2 years from sentence				   1

7. Compensation Order			a If not paid in full at date of application			   2

8. Absolute discharge 			a Up to 6 months from disposal			   1
					b More than 6 months from disposal			   0
    Conditional caution
					a Up to 3 months from disposal			   1
					b More than 3 months from disposal			   0

Sentences given after you apply
9 We will treat sentences given after the date we get your application as if they had been given on the day before we receive the application.

More explanation about penalty points
• We count penalty points as shown in this table for all applications made under the 2008 Scheme.
• Imprisonment, whether suspended or not, means the sentence given by the court, not the time spent in prison.
…
17	We can see from these paragraphs and the Guide that: 

(i)	A decision maker may reduce or withhold an award where the applicant’s character as shown by unspent criminal convictions makes it appropriate to do so.  In other words, he must exercise his discretion.  

(ii)	The effect of paragraph 14(3) is that the decision maker must withhold or reduce an award to reflect unspent convictions unless the decision maker considers that there are exceptional reasons not to do so.

(iii)	If there are exceptional circumstances for not withholding or reducing an award, the decision maker should not do so.  

(iv)	If there are no exceptional circumstances, he must withhold or reduce the award to some extent. 

(v)	The amount of any reduction of an award is within a decision maker’s discretion, but that discretion is generally exercised in accordance with the Guide.

(vi)	The Guide suggests as a starting point that where a claimant has 10 penalty points, there should be a 100% reduction – i.e. the award should be withheld. 

(vii)	The decision maker may consider that the circumstances are such that, despite the number of points ‘racked up’ under the penalty points system, there are circumstances which justify a lesser (or greater) reduction than that indicated in the Guide. 

(viii)	The Guide does not distinguish between actual imprisonment and a suspended sentence of imprisonment for the purposes of determining how many points the sentence attracts.  

Finally, as arising from CICA’s submission, 

(ix)	The Scheme does not explain how points are to be treated where a sentence contains several elements, such as a suspended imprisonment and a requirement to do unpaid work, as in this case.  CICA explains in its submission that, where a conviction for a single offence results in a sentence which includes a number of elements, their practice is to calculate points on the basis of the element that attracts the highest number of points.  The points for the various elements within a sentence are not aggregated.

What the Tribunal found

18	 The Tribunal found that the applicant pleaded guilty to, and was convicted of, a battery upon his wife.  The applicant was represented at the trial and did not appeal his sentence.  The Tribunal mentions the applicant’s evidence that his wife was often violent towards him.  On the occasion he struck her, he said did so out of frustration because she had slapped him and broken his finger shortly before the incident in question.  He said that his wife made false allegations against him and that the probation officer’s report was false in stating that the appellant said he struck his wife as ‘a wake up call’ to her.  The Tribunal’s sole comment on all of this was that the criminal court would have taken any mitigating circumstances into account in the sentence.  It then went on to find at paragraph 20

	‘(a) The Panel accepted that the appellant’s convictions were correctly as set out at T47 of the appeal papers which shows a total points of 13 and a reduction of 100%

(b) The Panel accepted in respect of the conviction on the 21st of February 2011 that that concerned the offence of battery on the 6th of September 2010.  The Panel accepted as a fact that that was a domestic assault and was reported to the court in the pre sentence probation report as set out at T49 of the appeal bundle.

	(c) The Panel found that there were no reasons advanced under paragraph 14(3) to persuade the Panel that full account of the appellant’s convictions should not be taken into consideration under paragraph 13(1)(e).’

19	It went on to decide that -

		‘no award or any reduced award was appropriate under paragraph 13(1)(e) and 14(3). ‘[21]

Its reasons were 

		‘22 ‘The reasons for the decision were that the Panel found that the appellant was convicted of a domestic assault on his wife.  The Panel found that the appellant pleaded guilty and did not appeal that decision.  The Panel was not satisfied on the balance of probabilities that there were any exceptional reasons under paragraph 14(3).

		23 The Panel accepted that the Authority’s points calculations were correct in adding a further 3 points in respect of the added unpaid work requirement imposed in March 2012.  Even considering the suspended sentence on its own, it would not be appropriate for the appellant to receive any award or any reduced award in accordance with the Scheme.

		24. Had the Tribunal found no reduction or some reduction was appropriate under paragraph 13(1)(e) and 14(3) the issue of co-operation under paragraph 13(1)(b) remained to be dealt with after hearing evidence and submissions’.

Analysis

20	Dealing with the number of points for the conviction first, I have come to the conclusion that the Tribunal was wrong in law in adding together the original 10 points for the suspended sentence of imprisonment with a further 3 points for unpaid work following the amendment of the applicant’s sentence.  The correct position is that there were only 10 penalty points.

21	 Where a conviction for a single offence results in a sentence which includes a number of elements, CICA’s practice, rightly in my view, is to calculate points on the basis of the element that attracts the highest number of points.  If the points for each of the individual element within a sentence for a single offence were simply to be totted up, this could result in an accumulation of points disproportionate to the gravamen of the conviction and underlying offence.  In saying this, I acknowledge that the system is based not only on the sentence given by the court, but also on the nearness in time of the conviction to the application for compensation.  This, however, does not detract from the need to maintain a sense of proportion in relation to any convictions. 

22	The Tribunal also found, however, that even if the claimant had only 10 penalty points, he should still get nothing.  If the Tribunal exercised its discretion properly in deciding that 10 points merited a 100% reduction, there would be no error of law in so deciding, even if another Tribunal might have come to a different conclusion.  The question of whether an award is reduced or withheld is a matter for the Tribunal’s discretion.  It was entitled to follow the Guide, if it thought that was the right thing to do in all of the circumstances.

23	But that does not appear to be what the Tribunal did.  It said that even considering the suspended prison sentence on its own, it would not be appropriate for the appellant to receive any award or any reduced award ‘in accordance with the Scheme.’  

24	This reveals two mistakes.  The first is to say that this result was in accordance with the Scheme. It was not.  It was in accordance with the penalty point system set out in the Guide which – as has already been said - was only a starting point.  

25	This is an error of law which means that the decision is seriously flawed.  Since I cannot say that another Tribunal applying its mind to all the facts and circumstances would come to the same conclusion, I must quash the decision and remit the case to the First-tier Tribunal.

26	Even if I am wrong in interpreting the Tribunal’s written decision this way, I would still be driven to quash it.  This is because in addition to the error of law identified, the Tribunal’s reasons are inadequate.  The inadequacies concern whether there were exceptional circumstances and why it exercised its discretion (insofar as it did so) as it did.  

27	The claimant tried to show why his award should not be reduced or withheld by giving evidence about his matrimonial problems.  The evidence included a statement by his daughter from a previous relationship saying that she saw the claimant’s current wife screaming at him and hitting him with a frying pan.  There was also evidence before the Tribunal that, despite his previous, spent criminal record, the claimant had not been in trouble since an offence in 2004 (which was spent in 2009) and 2010, when he struck his wife.  The Tribunal dismissed these as not exceptional without any explanation.  They might be right, but this evidence was not so flimsy that it went without saying that it was not ‘exceptional’.  

28	Moreover, even if the Tribunal had explained why the circumstances were not exceptional for the purposes of paragraph 14(3), the evidence remained relevant to the wider discretion the Tribunal could exercise under paragraph 13(1)(e).  It did not, however, address the issue of whether it was inappropriate to make any award, rather than a reduced one, probably because of its error in thinking that that 10 points meant that no award was possible.  

29	The Tribunal is under a duty to give adequate reasons.  CICA’s representative has cited well known law on this, including South Bucks District Council v Porter (no. 2) 2004] UKHL 33, which I do not repeat here.  He submits that the findings and reasons given by the Tribunal were sufficient to let the claimant know why he lost his case.  I do not agree.  

30	The extent of fact finding, analysis and reasons that a Tribunal is required to give will obviously depend on the complexity of the factual and legal issues it must resolve.  In this case, the heart of the claimant’s appeal was CICA’s reduction on review of a proposed award from a 50% award to £nil.  This was a matter on which the Tribunal had discretion, and it needed to explain how it exercised that discretion.  The explanation did not have to be elaborate, but it should have explained the factors which led it down one path rather than another and why it the Tribunal preferred one course to another.  

31	I respectfully adopt Upper Tribunal Judge Mesher’s observations on the adequacy of reasons in R (SB) v Ft-T 2011 (CIC) [2011] AACR 11.  These are summarised in paragraphs [5] and [6] of the head note:  

5 in the light of the importance now given to the adequacy of reasons as an element of a fair trial, nothing in R v Criminal Injuries Compensation Board, ex parte Cook [1996] 1 WLR 1037 can be allowed to take anything away from the standard of reasons required of a First-tier Tribunal and the tribunal’s reasons here did not come up to the standard required by those general principles as re-stated in South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953, as there needed to be some further explanation of why the nature of the claimant’s conduct made it inappropriate for something less than a full award to be made (paragraph 35); 

6. if a tribunal wishes to rely on the way similar cases have been dealt with in the past as part of the explanation for a conclusion on inappropriateness (not as a substitute for such a conclusion) it needs to say so expressly (paragraph 37). 

32	As the decision is quashed, the matter must be remitted to a freshly constituted First-tier Tribunal to rehear.  

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]		9 May 2014