JE v Criminal Injuries Compensation Appeals Panel [2003] EWCA Civ 234

Sexual activity – consent – defective – criminal injuries compensation

E applied for compensation under the Criminal Injuries Compensation Scheme in relation to alleged sexual assaults to which he was subjected by his cellmate, F, while on remand in prison.

The Panel decided that E was not entitled to compensation because he had consented in fact to the sexual activities in question.  The Panel reached this decision despite accepting that E’s IQ was sufficiently low so that he could not have consented at law to the sexual activities for the purposes of s15 Sexual Offences Act 1956. S15 provides that it is an offence for a person to make an indecent assault on a man and that a man who is a “defective” (ie a person suffering from a state of arrested or incomplete development of the mind which includes severe impairment of intelligence and social functioning) cannot in law give any consent which would prevent an act being an assault…

Under the Criminal Injuries Compensation Scheme, introduced in 1996, a non-consenting victim of a sexual offence does not include a victim who consented in fact but was deemed in law not to have consented.

The Panel’s decision was upheld by the High Court, but the Court of Appeal overturned those decisions.  The Appeal Court said that a crime could be a “crime of violence” for the purposes of the Scheme as long as there was not “real consent”.  The Court went on to find that while the degree of E’s mental impairment was significant, it was no more than an important part of all the circumstances to be weighed by the Panel in coming to their conclusion. The Court did, however, emphasise that if an applicant were so mentally disabled that he lacked the capacity to consent to the acts in question, he would undoubtedly be regarded as a victim.

In this case, the Panel’s decision was flawed in that they had failed to consider whether, despite the fact he consented, that consent was real so as to prevent his being a victim. The Court attached particular importance to the fact that the Panel, although referring to E’s low IQ, did not address the imbalance in his relationship with F, when F was clearly playing a dominant role. F was approximately double E’s age, was sexually experienced, while E was without any experience, and there was evidence that F was also a paedophile.  The Panel failed to consider the relative degrees of responsibility of E and F for what had happened.  Had they done so, they would very likely have come to the conclusion that F was substantially, if not entirely, to blame for what had happened.

The Panel’s decision was quashed and the matter remitted to be reheard by a different Panel.

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