Rape victim wins legal challenge against tribunal decision to reject claim for criminal injuries compensation

A judge in the Court of Session ruled that the tribunal reached a “perverse” decision having accepted the petitioner’s evidence that she had suffered “psychological and emotional trauma” as a result of the sexual assault, which prevented her from reporting the matter to the authorities and making a claim under the criminal injuries compensation scheme.

Compensation claim

Lord Glennie heard that that the petitioner “MM” was sexually assaulted and raped in 1965 when she was 20 years old, as a result of which she became pregnant and gave birth to a son.  

This was all admitted by the respondent, the Criminal Injuries Compensation Authority (CICA), in its answers to the petition.  

However, the petitioner did not report the incident to the police until late in 2013 and only made an application to CICA for compensation under the scheme a year later, in late 2014.

In April 2015 a claims officer rejected the application on the basis that it had not been made within two years after the date of the incident, as required by the scheme, and that there were no exceptional circumstances preventing her from applying within that period.  

The petitioner sought a review of that determination but in May 2016 her application was again rejected.

She appealed to the First-tier Tribunal (Criminal Injuries Compensation), which dismissed her appeal following a hearing in March 2017, with written reasons for the decision issued in July 2017. 

The petitioner, a university graduate, then sought judicial review of the FTT’s decision, arguing that it had not exercised its discretion in accordance with the terms of the scheme, that it had not exercised its discretion reasonably and that the reasons given did not justify the conclusions reached.  

‘Exceptional circumstances’

In her initial application to CICA and subsequent application for review, the petitioner stated that she had a child as a result of the rape and that she was “stigmatised and distressed”.  

She pointed to social standards prevailing at the time when the crime was committed, in particular the lack of support and society’s “unsympathetic” reaction to victims of rape, adding that she lived in a “small religious community” where victims of rape tended to be blamed and stigmatised, and said she was “afraid of not being believed”.

Becoming pregnant made matters worse, and the fact that the perpetrator was known in the community made speaking out and going to the police very difficult.  

She stressed that it was only after reporting the rape and speaking to Rape Crisis in late 2013 that she was made aware that she could be eligible for compensation and therefore it was not reasonable to expect her to have made the application earlier. 

The petitioner, who later married and had another two children, also stated that the “psychological impact” on her was another factor, adding that it was now recognised that deep psychological and emotional trauma was involved in such sexual crimes and she continued to suffer “psychological trauma” as a result of the incident.

In rejecting her applications, the CICA claims officers concluded that the evidence did not amount to exceptional reasons for the delay in making a claim or justifying an extension of time. 

The petitioner, who worked as a college lecturer from 1991 until her retirement in 2005, appealed to the FTT, setting out her “exceptional circumstances” and explaining that media coverage of historical sex abuse cases such as the Jimmy Savile case made her feel more able to come forward. 

But the FTT refused her appeal after finding that ignorance of the scheme, of itself, could not reasonably be described as an exceptional circumstance, and that she could reasonably have been expected to apply for compensation from any time after at least 1991, having completed her studies and started work as a lecturer, when she could demonstrate “independence of mind” and the restrictive social circumstance of 1965, which could arguably be given as a reason for not making an earlier application for compensation, had “changed with the passage of time”.

Judicial review 

However, counsel for petitioner argued that the reasoning of the reasoning of the FTT demonstrated a “wholesale failure” to understand the reasons for non-reporting by victims of rape and other sexual abuse. 

It was submitted that the tribunal was “not entitled” to hold on the facts found that the petitioner could reasonably have been expected to apply for compensation at any time after 1991.  

There was “no evidence” on which the FTT could have made a finding that by the time she had completed her university studies and started work as a lecturer, the petitioner would no longer be constrained by the moral or cultural stance of the community in which she had been brought up.  

Further, the tribunal had “erred in law” in holding that ignorance of the scheme was not enough of itself to amount to an exceptional reason; but, in any event, that ignorance existed because of the factors which prevented her reporting the incident to the police or other authorities.

The judge observed that there was a time when a person claiming to have been raped or sexually abused many years earlier could expect to have their credibility “undermined” by the perception that, if their story were true, they would have told someone about it at the time and would certainly not have delayed for years before reporting it to the police. 

“However” he added, “it is now recognised that a victim of rape or other sexual abuse may well be unwilling, or indeed unable, to come forward and make a complaint to the police or other authorities” and that the reasons were “myriad” and “sometimes complex”. 

Lord Glennie continued: “It is now within the everyday experience of practitioners and judges in our criminal courts that complainers (as they are called) come forward after many years (or even decades) of silence to say what happened to them and to hold their abuser to account. Why they decide (or feel able) to do so at that particular time will vary from person to person, from case to case.“

‘Perverse decision’

Reducing the decision and remitting the matter to a differently constituted tribunal, the judge observed that the FTT had accepted the petitioner’s evidence in its entirety but failed to make a finding in fact to the effect that she had suffered psychological and emotional trauma as a result of the rape, which prevented her from reporting the incident and thereby learning of the existence of the compensation scheme.

In a written opinion, Lord Glennie said: “If the tribunal accepted the petitioner’s evidence in its entirety, then it must have accepted her evidence that she was held back from applying earlier by the psychological and emotional trauma resulting from the rape (using ‘psychological and emotional trauma’ as a composite shorthand for the many and varied reasons why a victim of rape or sexual assault might not tell anyone about the crime or report it to the authorities). It should have made a finding to that effect. It should have gone on to consider whether such circumstances were exceptional; it is difficult to conceive that any tribunal could regard them as other than exceptional. If, consistently with the above, it had found that due to such exceptional circumstances the petitioner could not have applied earlier than she did, the FTT ought to have gone on to consider how it would exercise the discretion conferred by paragraph 89(a) of the scheme. 

“In the result, the FTT made no finding of fact on a crucial part of the petitioner’s case, namely that as a victim of rape and sexual assault she had suffered psychological and emotional trauma which had, in effect, prevented her from reporting the matter to the authorities and, in consequence, discovering about and making a claim under the criminal injuries compensation scheme. An alternative way of making the same point is that the FTT did make a finding of fact – to the effect that the petitioner was not prevented from making a claim by any psychological or emotional trauma resulting from the rape – and that that finding is perverse or at least unsupported by any cogent reasoning, given the FTT’s acceptance of the petitioner’s evidence in its entirety. For this reason alone the decision of the FTT cannot stand.”