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Chambers & Partners
26/05/2016

Court of Appeal grants permission to appeal in landmark incestuous rape case

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Ben Collins QC represents the Criminal Injuries Compensation Authority (CICA) in a case concerning whether an applicant under the 2008 Scheme, who was born with severe congenital disabilities as a result of the incestuous rape of his mother by her father, is entitled to compensation for the crime of violence perpetrated against her.

The applicant, Y, is a man who was born in 1987. His Mother was born in 1966 and from 1975, her father began to abuse her, including raping her from age 11. Y was born with severe and lasting congenital disabilities as a result of the consanguinity of his parents.

In 1991 Y's grandfather pleaded guilty to 4 counts of incest and he was sentenced to three years imprisonment. Y's mother was successful in her application for compensation under the Scheme.

Y also applied to the CICA, arguing that he had sustained a personal injury which was directly attributable to a crime of violence. The application was rejected by the CICA on the basis that Y had not been injured as a direct result of a crime of violence, and the decision was upheld on appeal to the First Tier Tribunal ("FTT").

Y then sought judicial review of the decision of the FTT, and in a decision dated 25 April 2016 the Upper Tribunal ("UT") granted the application for judicial review and concluded that Y was eligible for an award of compensation. The UT held that the 2008 scheme provides that compensation be payable to "an applicant" and clearly at the time of his CICA application, Y was a person. There was no requirement under the scheme that the applicant must have been a person at the time the crime of violence was committed. In every day terms, Y had suffered injuries which had been sustained in and were directly attributable to a crime of violence.

The UT granted permission to appeal to the Court of Appeal. The CICA argues that, giving the words "personal injury" their natural meaning, it is impossible to identify an injury without there having been a person in existence who had been injured. In this case there was no pre-injured state. The applicant was not a legal person at the time of the crime of violence committed against his mother. Indeed, if the crime of violence had not have been committed, Y would not have existed. Harm caused before birth which has consequences after birth cannot be treated as an injury to a living person, as the Court of Appeal ruled in the recent, high-profile litigation concerning children born with foetal alcohol syndrome: CICA v FTT (SEC) [2015] QB 459 (Ben Collins QC again for the CICA).

For the Upper Tribunal’s judgment please click here.

Case summary drafted by Katherine Fudakowski

For revelant news coverage please click here.

 

Ben Collins QC & Katherine Fudakowski will be speaking at the APIL child and adult abuse conference 2016 on 7th June 2016, for more infomation please click here.

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