Kallon v First Tier Tribunal (SEC) (Criminal Injuries) [2015] EWCA Civ 1099

Case No C3/2014/1495

[2015] EWCA Civ 1099

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)

Venue Royal Courts of Justice

Date Wednesday, 15th July 2015

Strand

London, WC2

B E F O R E:

LORD JUSTICE LONGMORE

ALIE KALLON

Claimant/Applicant

-v-

FIRST TIER TRIBUNAL (SEC) (CRIMINAL INJURIES)

Defendant/Respondent

(Digital Audio Transcript of

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The Applicant appeared in Person

J U D G M E N T

Between

KallonAppellant

First Tier Tribunal (SEC) (Criminal Injuries)Respondent

LORD JUSTICE LONGMORE:

[1]This is an oral renewal of an application for permission to appeal made by Mr Alie Kallon. He makes it in person and has put together a succinct argument for me to consider whether I should grant him permission to appeal.

[2]He claimed that he had been injured in a crime of violence, namely an assault occasioning actual bodily harm, contrary to section 20 of the Offences Against the Person Act 1861 and that in particular his thumb had been fractured. He claimed compensation from the Criminal Injuries Compensation Authority under paragraphs 6 and 8 of the Criminal Injuries Compensation Scheme. Paragraph 6 is headed "Eligibility to apply for compensation" and provides:

"Compensation may be paid in accordance with this scheme. (a) to an applicant who has sustained criminal injury on or after 1st August 1974.... 8. For the purposes of this scheme 'criminal injury' means one or more personal injuries as described in paragraph 9, being an injury sustained in and directly attributable to an act occurring in Great Britain which is: (a) a crime of violence including arson, fire raising or an act of poisoning."

Mr Kallon says that he has suffered injury as a result of a crime of violence.

[3]The Criminal Injuries Compensation Authority on 4th December 2012 rejected that claim because they said that any injury was sustained while the police were arresting him at his home when bailiffs were called to execute an enforcement order for fines for illegal parking. Mr Kallon's car had already been clamped and the tow away van was due to arrive. The authority said that the police did not use excessive force in arresting Mr Kallon to prevent a breach of the peace while he was being violent and they accepted that both the police in the form of a Sergeant Evans and the Independent Police Complaints Commission had investigated the matter properly once Mr Kallon had made a complaint.

[4]Mr Kallon appealed to the First-tier Tribunal, as he was entitled to do. But, in August 2013, they refused his appeal because in their view a crime of violence was not established. They said in their written reasons, which were furnished in October 2013, that there had been no fracture of Mr Kallon's thumb, that therefore there had been no crime of violence. They also said that no excessive force had been used by the police and said that Sergeant Evans had properly investigated the incident. They had before them a very full report from Sergeant Evans into the matter and they heard him give oral evidence.

[5]There is no appeal, as such, from a First-tier Tribunal dealing with matters arising under the Criminal Injuries Compensation Scheme, but as Mr Kallon has helpfully explained in his written material, it is possible to bring an application for judicial review of the First-tier Tribunal's decision. That is exactly what Mr Kallon did. He applied to judicially review the First-tier Tribunal. That is an application that is considered and determined by the Upper Tribunal. At first it comes before a judge on paper and it came before Mr Charles Turnbull, who was a judge of the Upper Tribunal for this purpose. He declined to give permission to proceed by way of judicial review because, in his view, the First-tier Tribunal had sufficiently explained its findings of fact. One of Mr Kallon's arguments was that if one looks at the report made by Sergeant Evans, one sees that he is, to a certain extent, critical of PC Wood who was at the scene at the time and he writes for example on page 58 of the bundle:

"PC Wood accepts his arrest notes were not as detailed as they could and should have been and that was his only failing from this incident. He states he was acting as a result of your actions and that in his view arrest was the last resort, but that he felt he had no alternative in the circumstances."

Sergeant Evans concludes on page 59:

"... the allegations that PC Wood assaulted you is not capable of proof ... I would suggest that PC Wood was acting lawfully when he detained you."

He adds this:

"I do however propose to give the officer management action with regards to his written arrest notes, which could have and should have been more comprehensive."

Under the head towards the end of his report "Outcome of complain investigation" he says:

"The outcome is that I do not uphold any of your complaints; however I do propose to give PC Wood management action for the quality of his written arrest notes, which I expect to be more comprehensive in future; something that he readily accepted in interview."

[6]Mr Turnbull in the course of his paper determination took on board Mr Kallon's argument that because PC Wood had been subjected to management action that therefore his conduct in the course of arresting Mr Kallon had been illegal. But he, Mr Turnbull, said this:

"The fact that Sgt Evans gave PC Wood 'management action' with regards to his arrest notes, which in Sgt Evans' view 'could and should have been more comprehensive', is not inconsistent with the First-tier Tribunal's findings. It did not imply that Sgt Evans considered that PC Wood had acted wrongfully in making the arrest, and in particular did not imply that Sgt Evans considered that PC Wood had acted recklessly when using force in order to make the arrest. It was no more than a judgment by Sgt Evans as to whether the arrest notes were sufficiently comprehensive. Sgt Evans did not conclude, nor was the First-tier Tribunal required to infer, that if the arrest notes had been fuller they would have contained matters which supported the Applicant's case."

[7]Mr Kallon was entitled to renew the application for judicial review at an oral herring. He did that on 21st February 2014. The oral hearing was conducted by Upper Tribunal Judge Ward who, likewise, refused permission to proceed by way of judicial review. He agreed with the determination of Mr Turnbull and gave a substantial judgment of the matter on 21st February 2014, in which he dealt with each of the paragraphs of a document provided by Mr Kallon by way of written submissions. He held that the First-tier Tribunal had reached the same conclusion as Sergeant Evans and they were entitled to do so, and it was up to the First-tier Tribunal to decide what to infer from the criticisms made of PC Woods record keeping. So his application was refused. He applied to Upper Tribunal Judge Ward for a review of that decision and for permission to appeal to this court, which was refused by Upper Tribunal Judge Ward.

[8]In this court as well the applicant has the privilege of both paper consideration and an oral hearing. On the papers Gloster LJ rejected his application for permission to appeal from the refusal of judicial review on the grounds that, in her view, there was no important point of principle or practice which arises and no other compelling reason to hear the appeal. Mr Kallon now applies orally for permission to appeal, as he is perfectly entitled to do. This is now the third oral hearing he has had of this matter. He says, in his argument which I have already described, that whether or not events amount to a crime of violence, such as an assault occasioning actual bodily harm, is itself an important point of principle, or perhaps practice or any rate is a compelling reason for permission to appeal to be granted and he also says that the Tribunal should not have accepted the evidence of the Sergeant Evans and in particular, that the fact he repeats the assertion that the fact that Sergeant Evans found it necessary to direct management action against PC Wood shows that he disapproved of PC Wood's action indeed. Mr Kallon in his written submission goes so far as to say that Sergeant Evans recommended action to be taken against the police officer, for knowingly and deliberately providing misleading information in his testimony. I have read the passages of Sergeant Evans' report and I fear that that is not correct. So I have to decide whether there is an important point of principle or practice or other compelling reason to give permission to appeal. I disregard the fact that the appeal has been brought somewhat seriously out of time and I will not refuse the application on this ground because I think it ought to be considered on its merits. But having considered it on its merits I am entirely satisfied that the First-tier Tribunal came to a conclusion which is open to them, that is not something which this court would consider that it could reverse and that it is a case which is not appropriate for a second appeal and I must therefore reject this application.