AW, R (on the application of) v First-tier Tribunal (CIC) [2013] UKUT 350 (AAC)

UKUT-AAC
AW, R (on the application of) v First-tier Tribunal (CIC)
[2013] UKUT 350 (AAC) · 2013-07-16
[1]The background to this case is a family tragedy. In September 2005, the claimant was living with his partner of some 20 years and their two children, a son, Robert, aged 19 and a daughter aged 16. Robert was troubled and prone to violent outbursts. He had had learning difficulties and had been the subject of a statement of special educational needs from the age of about 8. Whether or not he had a diagnosis of attention deficit hyperactivity disorder I do not know but he had a very short attention span and got angry quite easily. Despite the involvement of education welfare officers, he did not attend school at all from the age of about 14 and consequently did not gain any qualifications, although that did not prevent him from obtaining reasonably well-paid employment. He abused cannabis and his mother said that made him lose his temper even more quickly. He shouted and smashed things around him. Once he left school, the family had no support or assistance with managing Robert’s anger. He had frequent arguments with his father, although the heavy drinking of the latter was clearly a factor. Police had attended the family home four times during the past year, three times when there had been incidents involving father and son (fault being attributed by the police to both equally on two occasions and solely to Robert on the other) and once when Robert had assaulted his sister and been cautioned.[2]On 22 September 2005, there developed another argument, during the course of which Robert was verbally abusive to both his parents and his sister. At one stage, all the members of the family were in the upstairs bedroom to which the mother had earlier retreated. The men left the room, the claimant to go to the toilet. Shortly afterwards, Robert rushed back in, saying that he had pushed his father down the stairs. The claimant was lying at the bottom of the stairs, clearly badly injured. Robert called an ambulance – as did both his mother and sister – and the ambulance service called the police. The claimant was taken to hospital in the ambulance, where he was found to have a fractured skull. Robert ran off but later attended the hospital. He was sent away by his mother and was arrested by the police on the following day. In interview, he in effect said that he had pushed, or at least touched, his father while trying to get past him and that his father falling had been an accident. He was nonetheless charged under section 18 of the Offences Against the Person Act 1861 with causing grievous bodily harm with intent and was held in custody.[3]The claimant was discharged from hospital on 27 September 2005. He told me that he is deaf in one ear and has only partial hearing in the other and that he has also lost the senses of taste and smell. There is also medical evidence that he suffers from serious tinnitus and has also suffered psychologically. He had difficulty in coming to terms with the fact that his son had pushed him down the stairs and he has suffered from depression. He was very supportive of his son and. Although his partner was also supportive of him, she and their daughter were potential prosecution witnesses. That created tension within the family – an issue I must consider in greater detail below – and there is also some evidence that the claimant’s personality changed. No doubt there were other causes, but the incident does appear to have contributed to the break-up of the family. The claimant now lives alone. However, he remains in contact with his ex-partner and both his children. He has forgiven his son for what he did, but he has not forgotten about it.[4]In January 2006, the prosecution indicated to Robert that it would accept a plea of guilty to the offence under section 20 of the 1861 Act of inflicting grievous bodily harm. Initially, that was rejected but, on 3 March 2003, at Worcester Crown Court (although Hereford Crown Court is mentioned in one document), he pleaded guilty to the section 20 offence, on the basis that the grievous bodily harm had been caused by recklessness rather than intent. On 10 April 2006, at Lincoln Crown Court, he was sentenced to 9 months imprisonment, suspended for two years, a supervision order was made for a year and he was required to perform 80 hours of unpaid work. It appears that he was later brought before Worcester Crown Court for breach of a part of the order and was imprisoned.[5]On 10 September 2009, the Criminal Injuries Compensation Authority received the claimant’s claim for compensation. Initially, the Authority rejected it because it was late but, on review and having received evidence from the claimant’s general practitioner as to his mental health, it admitted the claim but decided that any award would be withheld on the ground that the claimant had “failed to co-operate with the police or other authority in attempting to bring the assailant to justice” (see paragraph 13(b) of the Criminal Injuries Compensation Scheme 2008). It also took into account the claimant’s “character as shown by his … criminal convictions” (see paragraph 13(e) of the Scheme), although he only had one conviction for driving with excess alcohol that would, under the Authority’s standard scheme, have resulted by itself in only a 10% reduction in an award.[6]Although on the standard report form completed by the police at the request of the Authority it was stated that there was no evidence that the claimant did not fully co-operate with the police (doc B4), there was evidence to the contrary.[7]The police had taken a statement from the claimant’s daughter on the day of the incident. Two days later, they had taken one from the claimant’s partner. She said at the end of it:
“I would not be willing to attend court and give evidence against Robert, although I provided statement and gave it so I could give people a better understanding of him and the problems he faces.”
Although neither of them had seen the actual incident, their statements were potentially helpful to the prosecution in setting the scene and recording what Robert said immediately afterwards. On 30 September 2005, the claimant himself made a witness statement saying that he did not remember what had happened. That was consistent with medical evidence and it is not suggested that it was not true. He also said that he had been told by his partner and daughter what had happened and added:
“I feel that Robert would not intentionally push me down the stairs, I believe that he would have been trying to get past me. I don’t believe that he would have wanted to harm me or cause me serious physical harm.”
So far, so good.[8]However, there is an investigation record (doc T1), recording that the claimant’s partner said on 3 November 2005 that the claimant blamed his daughter for his son being in custody because she had made a statement and that he wanted to know who called the police. Then there were three telephone calls from the claimant himself saying that his memory was returning and that he had fallen and not been pushed. On 15 December 2005, he gave a formal witness statement to that effect. After referring to his previous witness statement, he said – “I would further like to say that I fell down the stairs rather than him pushing me down. Since the incident a lot of my memory has come back and I can now say that I fell. The reason that I fell down the stairs is because of an existing leg and back injury. I have seen the doctors for these conditions. Sometimes my leg just gives way. The injury to my leg is as a result of a motorcycle accident. On the day of the incident I remember going to the Cricket Club …, then coming home and having a few words with Robert. I think he’d upset his sister. I then went to the toilet upstairs, I came out of the toilet and went downstairs, I put my right leg first and it gave way, I tried to grab onto the handrail but fell down the stairs. Robert was to the right of me. I would say that Robert was about 4 ft away from me. I remember going down the stairs, and then the next thing I knew was in hospital being visited by a friend. That day I had consumed 3 pints or more at the Cricket Club. This may have been why I couldn’t grab the handrail. I will attend court to say that I fell downstairs.”[9]On 8 February 2006, it was recorded that the claimant’s partner had said that the claimant was verbally abusing his daughter and that she had been staying at her boyfriend’s. On 18 February 2006, it was recorded that his partner said that she and her daughter would not attend court unless summoned and two days later it was recorded that witness summonses would be arranged. Other entries in the Investigation Record reveal the stress in the relationship between the claimant and his partner and her taking an overdose in early March 2006, although the last entry records their daughter saying on 15 March 2006 that “they were getting on better and generally things seemed to be going well”. On doc B6, another police report, the person who had previously said that there was no evidence that the claimant had failed to co-operate with police said: “It has also been noted that witness care spoke to [the claimant’s daughter] who said she has been put under great emotional pressure at home not to attend court from her father”.[10]The claimant appealed against the review decision. He replied to the response that had enclosed the documents mentioned above by saying that there was no evidence that he had failed to co-operate with police and that his daughter had written to refute the allegation made as regards her (although it does not appear that any such letter was received by the First-tier Tribunal). He provided a letter from his ex-partner in which she said that her daughter had not wanted to go to court without her, that she had no knowledge of the claimant asking his daughter not to attend court or any witness care involvement and that it was she who was summoned. Indeed, there was in the original bundle a copy of the summons addressed to her but none addressed to the daughter.[11]The First-tier Tribunal dismissed the appeal, broadly accepting the Authority’s case but adding that even if it would otherwise have been minded to make an award it would not have done so because it could not be satisfied “that there is no likelihood that an assailant would benefit if an award were made” (see paragraph 16(a) of the Scheme) in view of the claimant’s continued contact with his son.[12]The claimant now applies for permission to apply for judicial review. I held an oral hearing at which he expanded on his written grounds. There are essentially three grounds. The first is that there are inaccuracies in the First-tier Tribunal’s statement of reasons. The second is that the First-tier Tribunal refused to give any consideration to his mental health problems. The third is that it was wrong to find that his son might have benefited from an award. Judicial review lies only where the First-tier Tribunal has erred in law. So, the question for me is whether any of those grounds translates into an arguable point of law.[13]Two of the “inaccuracies” suggested by the claimant are not, in my view, inaccuracies at all. He says that the First-tier Tribunal was wrong to state that his son had been convicted at Worcester, because he had been convicted at Lincoln. It does not really matter where he was convicted but I think the First-tier Tribunal was right on this issue. The claimant’s son was convicted when he pleaded guilty and that appears to have been at Worcester, as one would expect since the offence was committed in Worcestershire. It seems that the case was then adjourned for sentence and it was at Lincoln that he was sentenced and where the claimant was given an opportunity to address the court from the witness box. Presumably that was because the judge before whom Robert had pleaded guilty was by then sitting in Lincoln. It was also not inaccurate for the First-tier Tribunal to find that witnesses were not required to give evidence in consequence of the plea of guilty. The claimant’s partner had been summoned to attend the hearing at Worcester, where it was expected that there would have been a full trial at which she and her daughter would have been called to give evidence. Because Robert pleaded guilty, that was not necessary. The court in Lincoln heard from the claimant in relation to sentencing, rather than conviction.[14]The other “inaccuracies” are related to each other. The clamant says that the First-tier Tribunal was wrong to find that his daughter had received a witness summons and wrong also to find that he “sought to persuade [his daughter] not to attend court and give evidence”. It was, of course, for the First-tier Tribunal to make its findings of fact but what is striking about the statement of reasons is that it appears to contain no reason for making those particular findings.[15]In relation to the witness summons, I do not consider that the lack of reasoning really matters since whether or not his daughter received a summons is not material to the question whether or not the claimant failed to co-operate with the police. It is certainly arguable that, although there was evidence that summoning her was considered, there was no evidence that a summons was either issued or served and there are obvious reasons why it might have been thought unnecessary to serve a summons on her once her mother had been summoned.[16]The more important question was whether the claimant put pressure on his daughter not to attend court, because clearly doing so would amount to a failure to co-operate with the police or the Crown Prosecution Service. It was not disputed that the claimant did not want his son prosecuted and made that known to his partner and daughter but that is not necessarily the same as seeking to persuade his daughter not to give evidence, which is what the First-tier Tribunal found him to have done. It is arguable that there was actually no evidence that he overtly put pressure on his daughter not to give evidence. On the other hand, it is possible that the First-tier Tribunal reasoned that the claimant had blamed his daughter for his son’s predicament and, by doing so, had put emotional pressure on her not to attend court and that that was sufficient to amount to failing to co-operate with the police or prosecuting authority. Whether the statement of reasons adequately explains the decision on this issue and whether such reasoning as can be discerned was legitimate might be arguable points of law. However, ultimately, I consider that those points cannot help the claimant in the light of the other findings of the First-tier Tribunal.[17]In relation to the claimant’s second ground for applying for permission to apply for judicial review, he told me at the hearing that, when he tried to raise his mental health problems before the First-tier Tribunal, he was told that “we are not going to talk about injuries at this stage”. It is easy to imagine that something along those lines may well have been said on the basis that the state of the claimant’s mental health was a matter to be taken into consideration when assessing the amount of compensation payable, rather than when considering his eligibility which is what the First-tier Tribunal clearly wished to consider first.[18]The claimant’s point, of course, is that he wished to argue that his mental health was also relevant to the issues being considered in relation to eligibility because they partly explained those of his actions that were being said to amount to a failure to co-operate with the police or prosecuting authority.[19]The difficulty the claimant faces with this argument is that, although his mental health may be some mitigation for what he did, it was not such that he can disclaim responsibility for his actions and, most importantly, for his making the witness statement of 15 December 2005. That witness statement was, as the claimant admits, deliberately false. It was simply not true, and he knew it was not true, that he remembered falling down the stairs at a moment when his son was some distance from him. He has never in fact recovered any memory of the incident. Whatever else he did or did not do, the claimant cannot deny that making that witness statement amounted to a failure to co-operate with the police and the Crown Prosecution Service. It was no less of a failure to co-operate with the police if he made the statement primarily to relieve the pressure on his partner and daughter, who were not keen on attending court, rather than to assist his son. The claimant describes having made the statement as illogical or irrational and it is certainly true that, at least with knowledge of what the claimant’s partner and daughter had recorded Robert as saying when he had rushed back into the bedroom and what he had admitted in interview, it was unlikely that the claimant’s statement would be believed by the police or the Crown Prosecution Service or would be of any assistance to the defence. In fact, sticking to his original statement would have been more help to the defence. It may well be that his judgement was affected by the injury he had suffered, but he still deliberately set out to sabotage the prosecution of his son.[20]To his credit, the claimant accepted before me that he remained responsible for his actions, even if his judgement was impaired, and that making the statement did amount to a failure to co-operate with the police. The question is whether, had it considered the issue, the First-tier Tribunal might have considered that the claimant’s mental health so impaired his judgement that an award of criminal injuries compensation should not have been completely withheld.[21]I am satisfied that the answer is “no”. To make a deliberately false witness statement in criminal proceedings is an exceedingly serious matter. The claimant could have been prosecuted. Recognition of his mental state may have contributed to his not being prosecuted but co-operation with the police and prosecuting authority is a legitimate condition of entitlement to compensation paid by the State to those who have suffered criminal injuries and I regard it as inconceivable that it should be decided that the claimant in this case should be entitled to compensation, whatever the amount might have been. I am satisfied that, even if it were decided that the First-tier Tribunal had erred in law in some aspects of its decision, judicial review would be refused as a matter of discretion.[22]That is why I do not consider that the points arising from the alleged “inaccuracies” merit the granting of permission to apply for judicial review. The same applies in relation to the claimant’s third ground. Although there was evidence upon which the First-tier Tribunal could properly take the view that the claimant’s son might have benefited from an award of compensation, it is arguable that it failed to give the claimant an adequate opportunity of answering what was a new point raised by the First-tier Tribunal itself. However, it is doubtful that he would have had an adequate answer and the issue simply does not arise if an award is withheld on other grounds.[23]I understand why the claimant regards some parts of the First-tier Tribunal’s decision to be unsatisfactory and I have considerable sympathy for the position in which he found himself upon his discharge from hospital and in which he still finds himself. He is undoubtedly disabled and, in most respects, his and his ex-partner’s continued support for their son was, and remains, admirable. But not all people who are disabled are entitled to compensation and, although the claimant is a victim of a crime, he crossed a line when he made the deliberately false witness statement in relation to the criminal proceedings and he must accept that the consequence is that he is not entitled to criminal injuries compensation in respect of that crime.[24]I am satisfied that, even though there may possibly have been flaws in parts of its decision, the First-tier Tribunal reached the only conclusion reasonably open to it in the circumstances of this case. I therefore refuse permission to apply for judicial review. Postscript[25]At an early stage in these proceedings, I directed the First-tier Tribunal to provide a transcript of the proceedings before it or else the notes made by the presiding judge and other members of the panel. It transpired that the proceedings had not been recorded and the First-tier Tribunal asked me to set aside my direction, saying – “… the notes of the Tribunal Members are private and compiled for the assistance of that individual when preparing their decision. They do not constitute a record of the hearing. As such they may not contain all of the evidence or a detailed note of the course which the hearing took. They are open to misinterpretation unless the author of the note is available to provide an explanation. Reliance upon these notes can lead to mistakes and a false impression of the conduct of the hearing.” I declined set my direction aside, explaining why, and the notes were then produced.[26]It may be helpful if I now set out my explanation and also mention a more recent authority on the issue. I said – “5. A distinction is to be drawn between notes that form a record of the proceedings (e.g., notes of the evidence and submissions made) and notes made as an aide memoire (e.g., notes recording impressions of witnesses or the private deliberations of the members of the tribunal). It seems clear that the latter type of note is indeed private ( Cobham v Frett [2001] 1 WLR 1775 , at 1783) and need not be produced to the Upper Tribunal. 6. However, it also seems that a record of evidence and submissions ought to be produced on request and that, if no record of the evidence and submissions was made by the First-tier Tribunal, it was in breach of a basic judicial duty. Appellate courts and tribunals expect there to be such a record, which can be made available upon request or order. 7. In the courts and those appellate tribunals with an adversarial tradition, a request or order usually follows only upon an application made by a party, generally the appellant or would-be appellant. On the other hand, there is no reason why a request or order should not be made without there having been such an application, particularly where the relevant party is unrepresented and is unlikely to know that such an application might be made or might be appropriate. Indeed, in social security cases, among others, a First-tier Tribunal judge’s record of proceedings is automatically made available to the Upper Tribunal in every case where an application for permission to appeal is made to the Upper Tribunal. 8. As long ago as 1951, the Industrial Injuries Commissioner (a forerunner of the Upper Tribunal in the social security field) said in R(I) 81/51 that it was desirable for a local tribunal to make a record of the evidence given at a hearing, adding – ‘Failure to do so may result in an injustice being done to the claimant, because, in the event of an appeal, the Commissioner may not have the claimant or witnesses before him, and it is therefore most important that the notes of evidence should be complete, and that the findings of fact should be clearly stated and indicate on what evidence they are based.’ He may well have had in mind one or both of the Court of Appeal decisions mentioned below. 9. As is now the case in the Upper Tribunal, appeals were frequently determined by the Commissioner without a hearing. The practice developed of recording the evidence before local tribunal on a form which was copied to the parties and retained in its file so that it would automatically be available to a Commissioner in the event of an appeal. Much later, the duty to make and keep a record of proceedings in social security and child support cases was put on a statutory footing. In 2008, when the functions of tribunals dealing with social security, child support and criminal injuries compensation cases were transferred to the First-tier Tribunal, that statutory duty was replaced by a duty imposed by a [practice statement] [1] . However, the [practice statement] applies only to social security and child support cases and has not been extended to criminal injuries compensation cases, even though they are heard in the same chamber of the First-tier Tribunal. 10. In practice, most judges and members determining criminal injuries compensation cases do make a record of evidence and submissions and provide their notes to the Upper Tribunal upon request without demur. The question that arises is whether they are bound to do so. I draw attention to Houston v Lightwater Farms Ltd [1990] I.C.R. 502, where, faced with the same issue, the Employment Appeal Tribunal said at 507D – ‘A chairman of an industrial tribunal is acting in a judicial capacity and following views expressed by the Court of Appeal and in the divisional Court of the King’s Bench Division he, as a judge, has in our judgment a judicial duty to make some note of the proceedings before him, including the evidence, for the assistance of an appellate court in the event of an appeal.’ 11. The Court of Appeal decisions to which reference was made were Brown v Holliday [1951] W.N. 67, where Sir Raymond Evershed MR was reported as saying that ‘apart from any questions of statutory duty, he thought that a judge had a judicial duty to perform which required that he should make some kind of note so that, in the event of an appeal, the Court of Appeal would have some assistance from him’, and Bergood Investments Ltd v Hirsch (1951) 212 L.T.Jo. 90, where he emphasised that the absence of a note is unfortunate, not only for the appellate court but also for the litigant. The Divisional Court case was Simmons v Crossley [1922] 2 K.B. 95, where Swift J had said that it was convenient that a judge ‘should make such a note of the contentions of the parties and of the facts upon which those contentions are based and of the evidence relating thereto as will enable this court to decide the matter if an appeal is brought’ and had further referred to In re Chertsey Rural Council v Binns (1905) 49 Sol.J. 223, where the Divisional Court had held that the omission to take such a note was a sufficient ground for ordering a new trial. 12. It currently seems to me that the same approach must be justified here. I do not consider that the fact that a challenge to a decision of the First-tier Tribunal must be by way of judicial review rather than an appeal makes any difference. On the other hand, a failure to comply with a duty to make or keep a record of proceedings will not by itself lead to a decision being quashed unless it results in a real possibility of unfairness or injustice because, for instance, it makes it impossible fairly to determine another issue arising in judicial review proceedings (R(DLA) 3/08). 13. Having sat in various forerunners of the First-tier Tribunal, I am conscious of the burden placed on tribunals when keeping a note of submissions and evidence. Nonetheless, most judges do take notes. The notes naturally vary in the degree of detail recorded. The Upper Tribunal does not expect notes to be verbatim. Often judges use abbreviations. Sometimes it is clear that a judge has been distracted from note-taking and there are gaps in the notes. Notes are seldom perfect. However, notwithstanding their imperfections, they often provide valuable assistance to the Upper Tribunal, particularly at the stage of deciding whether or not to grant permission to appeal or to apply for judicial review.”[27]Since then, a divisional court (Sir John Thomas P and Cranston J) has considered, in R.(McIntyre) v Parole Board [2013] EWHC 1969 (Admin) , the Parole Board’s duty to make, maintain and make available a record of the proceedings before it and has referred to a more emphatic statement of a duty to take a note of proceedings. “19. The obligation to take a note was made clear as long ago as 1994 by this court in R v Parole Board, ex parte Gittens (Times 3, February 1994, transcript 26 January 1994). One of the issues turned on what the applicant had said. In his concluding observations Ralph Gibson LJ said, after making clear that the prisoner's representative should keep a note: ‘It is, however, in my judgment necessary for a sufficient note to be made of the proceedings by or at the direction of the panel. Such is the obligation of a county court judge in ordinary proceedings in those courts. The note should be produced by the Board upon the grant of leave to apply for judicial review with reference to a decision’ 20. In our view it is the responsibility of the Board to ensure that a proper record is made of each hearing and in particular the evidence given at it. As there is no audio or visual recording of the proceedings (and there is no reason for them to be recorded), then the full note which the chair makes of the evidence and the proceedings is the record of the proceedings. ….”[28]The divisional court went on to say – “22. It may be that the Board has failed to distinguish between the notes of the chair which constitute the record of the proceedings and the notes made by the chair or other panel member during the hearing as part of their preparation for reaching a reasoned decision. …23. The notes constituting the record are quite distinct from notes taken by the chair for his or her own use or notes made by a judge or chair where there is an audio or visual recording of the proceedings. Such notes do not constitute the record. Nor do they constitute personal data. They are made by the judge or chair or panel member solely for the purpose of assisting in and in preparation for the reaching of the reasoned decision; they are not a record of the proceedings. Their absolute confidentiality is integral to the independent and impartial decision making function of a judge or tribunal or panel member and the proper administration of justice. They are in effect notes made for the preparation of the judgment. They are no different to a preliminary draft of a judgment. If such notes are held by an administrative officer or on a computer system operated by an administrative body for the judge, tribunal or panel member, they are held on behalf of the judge, tribunal or panel member and remain under the sole control of the judge, tribunal or panel member. No person has a right of access to them. They must never be disclosed or provided to any person.24. For that reason it was accepted that if the notes of the chair contained observations which were made by the chair for the purpose of reaching a decision or setting out the reasons, then that part of the notes do not constitute part of the record and can never be made available.”[29]I add two comments from an Upper Tribunal perspective.[30]First, as most applicants are litigants in person and as the Social Entitlement Chamber of the First-tier Tribunal already provides the Upper Tribunal with documents before an application for permission to apply for judicial review is considered, there may be something to be said for automatically including a copy of a panel’s notes with those documents as is done in relation to appeals. In my experience, for every case where a record of proceedings assists an applicant, there are at least two where the record of proceedings undermines an application and it seems desirable that the record of proceedings should be available at the permission stage, rather than only when permission has been granted, and that the administrative costs and delay involved in making individual requests should be avoided if possible.[31]Secondly, obtaining a transcript of, or listening to, a recording is time consuming and therefore expensive and there may be advantages from the Upper Tribunal’s point of view in the First-tier Tribunal supplying it with such manuscript note of evidence as may have been taken in a case where there is a definitive record of proceedings in the form of an audio or visual recording, even though a panel’s notes may be less full in such a case and checking the definitive record may still be necessary in a proportion of the cases. (If notes were kept for specifically for that purpose as well as for the purpose of assisting in the preparation of a reasoned decision, they would presumably not be subject to the same degree of confidentiality. In any event, it seems to be reasonably clear that the absolute prohibition on disclosure of notes where there has been an audio of visual recording is a prohibition on administrative officers disclosing them and presumably the judiciary – either individual judges and panel members having “sole control” of the notes or, perhaps, the relevant Chamber President – could waive the confidentiality of their notes of evidence if satisfied that it was appropriate to do so in the interests of justice.) At present, this may not be a live issue in many First-tier Tribunal cases but it is likely to become one sooner or later. Mark Rowland 16 July 2013 [1] I originally said “practice direction” but the document is in fact a practice statement issued on 30 October 2008 by the then Senior President of Tribunals.

Cited in 1 later judgment