“We shall call the applicant and his wife Mr and Mrs S. On Friday20 March 2009 Mrs S was the victim of a sexual assault at knifepoint by a man who lived next door to her and who, unbeknown to Mr and Mrs S, was a convicted murderer. The attack, which later resulted in the assailant being convicted of rape and sentenced to life imprisonment, began when the assailant entered Mr and Mrs S’s house at about 9.15am. The assailant remained in the house until some time after their 19-year-old son (whom we shall call ‘K’) arrived home at about 1.15pm. Mr S himself arrived home at about 4.35pm. His evidence was that he and Mrs S spent what he described what he described as a ‘horrendous’ weekend during which Mrs S was indifferent and hostile towards him, and she did not in fact tell Mr S what had happened until the following Monday, after he had coincidentally met and spoken to his wife’s attacker on his way home from work. Mrs S’s evidence was that during the weekend the assailant sent her a number of text messages indirectly referring to the attack.”
“8.
“9. For the purposes of this Scheme, personal injury includes physical injury (including fatal injury), mental injury (that is temporary mental anxiety, medically verified, or a disabling mental illness confirmed by psychiatric diagnosis) and disease (that is to say a medically recognised illness or condition). Mental injury or disease may either result directly from the physical injury or a sexual offence or may occur without any physical injury. Compensation will not be payable for mental injury or disease without physical injury, or in respect of a sexual offence, unless the applicant: (a) was put in reasonable fear of immediate physical harm to his or her own person; or (b) had a close relationship of love and affection with another person at the time when that person sustained physical and/or mental injury (including fatal injury) directly attributable to conduct within paragraph 8(a) (b) or (c), and: (i) that relationship still subsists, unless the victim has since died, (ii) the applicant either witnessed and was present on the occasion when the other person sustained the injury, or was closely involved in its immediate aftermath....” 6. The only issue in the present case was whether the respondent satisfied the condition prescribed at 9(b)(ii). Did he witness or was he present when his wife sustained the injury inflicted on her by the sexual assault or was he closely involved in its immediate aftermath? The conclusions of the FTT are fairly summarised in Mr Collins’ skeleton argument for the appellant at paragraph 18 as follows: “(i) The attack ended when RS’s son arrived home at around 1.15 pm, around three hours before RS arrived home. (ii) Given that those three hours had elapsed, it could not be said that RS was closely involved in the immediate aftermath of the attack. (iii) RS was involved in the consequences of the attack, but the Scheme refers to the occasion on which the other person sustained the injury, and not the events which might follow an incident. (iv) The requirements of paragraph 9 were accordingly not met.”
“17. The Tribunal accepted the Police Officer’s opinion in respect of the timing of K’s arrival. The Tribunal noted that the Police Officer stated that at the subsequent Crown Court trial [K] was a compelling witness and she thought his timings were accurate. 18. The Tribunal also accepted the Police Officer’s evidence that the attack ended when [K] arrived home and that subsequent texts could not be seen as a continuation of it. No threatening texts had been found.”
“By stating that it accepted the officer’s opinion as to when K arrived home, and the officer’s evidence as to whether ‘the attack’ continued after that time, the tribunal appears to have misconceived -- and perhaps abrogated -- its duty. Acceptance of what the officer had said in both these respects involves having regard to the officer’s personal opinion. That opinion was irrelevant to the functions that the tribunal needed to perform.”
“(1) The first stage is to make findings of fact as to what physical and mental injury or injuries were sustained by the primary victim, as to how they were sustained, and as to the period during which they were sustained. This period may or may not coincide with the period during which an attack or other conduct within paragraph 8(a), (b) or (c) occurred, and there is no need at this stage to do more than identify the mental and physical injuries to the primary victim and how and when they were sustained. ...”
“This period [that is, the period within which the injury was sustained] may or may not coincide with the period during which an attack or other conduct within [paragraph 8] occurred. ...”
“First, in my view, one must read the words ‘witnessed and was present on the occasion when the other person sustained the injury’ in para 9(b)(ii) as referring, in a case of a physical attack such as occurred in the present case, to being present when the attack occurred. That is in my view the natural meaning of those words, and that conclusion in my view also follows from the fact that the wording of para. 9(b)(ii) was intended to reflect the law as to the recoverability of damages in tort for psychiatric illness. The fact that the applicant was present at the time when consequential and increasing damage to the deceased’s brain was occurring did not therefore mean that he ‘witnessed and was present on the occasion when the deceased sustained the injury’.”
“20. As the Tribunal found that the attack had concluded over 3 hours before the applicant returned home, it could not be said that he was closely involved in the immediate aftermath of the attack. As confirmed in the textbook on Criminal Injuries Compensation Claims by Padley & Begley [That is Miss Begley, to whom we have had the pleasure of listening to today] the test for ‘Immediate aftermath’ is laid down in the case of McLoughlin v O’Brien. Padley & Begley states ‘in relation to timing, the immediate aftermath is normally regarded as being limited to a short period of time after the occurrence of the incident, that is no more than an hour or so.....’ 21. When the Applicant did arrive home, he was inevitably involved in the consequences of the violent attack. However, the Scheme specifically states that an applicant must be ‘closely involved in its immediate aftermath’. It is clear from the preceding words that ‘its’ refers to ‘the occasion on which the other person sustained the injury and not the events that might follow an incident.”
“In relation to timing, the immediate aftermath is normally regarded as being limited to a short period of time after the occurrence of the incident, that is no more than an hour or so although a longer period of time may still be regarded as falling within this category if for instance there is some understandable delay before the primary victim’s body is found or before the applicant is able to visit the primary victim... In the McLoughlin case, the mother first saw her injured husband and children in hospital. In a case of a sexual assault or rape the immediate aftermath might involve attendance at the police station and the inevitable medical examination and interviewing process.”