Successful compensation appeal by rape victim

22 August 2016 by Guest Contributor

By Pritesh Rathod

RT v (1) The First-Tier Tribunal (Social Entitlement Chamber) and (2) Criminal Injuries Compensation Authority [2016] UKUT 0306 (AAC) – read judgment.

The Upper Tribunal has ruled that, in deciding whether or not an applicant has cooperated with the prosecution of her assailant where she made and later retracted an allegation of rape, it was necessary to see why that retraction was made and whether it was done truly voluntarily, rather than simply assessing whether she was responsible for the retraction.

Background facts

The Applicant (“RT”) was married to H and had four children with him between 2001 and 2008.  From 2004, she was subject to physical and mental abuse by H, culminating in three incidents of rape.  What followed was a somewhat protracted and complicated course of events relating to H’s prosecution.

Initially, H was arrested and charged with six counts of rape.  He was bailed subject to certain conditions.  While H was in custody, RT wrote to him saying that she missed him and wanted him back home.  Over Christmas 2009, H returned home and he and RT had “something of a reconciliation”, including having consensual sexual intercourse.

By January 2010, RT sought to withdraw the complaint (she had commenced divorce proceedings against him).  In February 2010, RT telephoned the police to ask what would happen if she had lied about the rapes.  Later that month, she retracted her allegations, saying that all of them were untrue.  H appeared at the Crown Court and was acquitted after the prosecution offered no evidence.

RT was arrested in April 2010 in relation to having made a false allegation of rape against H.  She was charged with perverting the course of justice by making false allegations.  However, when she met her defence counsel, she said that the allegations had in fact been true.  In August 2010, she contacted the police and now said that she had in fact been raped.  She made a sworn statement to that effect for the purposes of family proceedings.  She explained that H and his sister had persuaded her to retract the allegations because the punishment that H would suffer if being found guilty of rape would be worse than the punishment that she would suffer for making false allegations.

The CPS therefore charged her with an additional offence of perverting the course of justice by falsely retracting a true allegation of rape.  In October 2010, she pleaded not guilty to the charge of making a false allegation (which was not proceeded with) but pleaded guilty to the charge of falsely retracting a true allegation.  Her pre-sentence report stated that RT had felt immense guilt following H’s arrest and thought that divorce proceedings would be punishment enough for him.  She also felt under pressure from her husband to retract the statement because of the fear of repercussions.  Indeed, at the end of October 2010, her husband attacked her by dragging her outside by her hair and tearing her clothes off.

She was sentenced to eight months imprisonment.  This was reduced on an expedited appeal heard by a Court of Appeal which included the Lord Chief Justice (R v A [2010] EWCA Crim 2913), who commented on the difference in culpability between making a false complaint against an innocent man and withdrawing a truthful complaint against a guilty one.  Lord Judge CJ stated:-

“Experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it.”

The Lord Chief Justice further noted that a woman who had been raped by a partner in whom she had placed her trust would have been extremely vulnerable, before commenting that it would be very exceptional for a case of this kind to be prosecuted.  A supervision order was substituted.

The conviction for perverting the course of justice, however, stood (A v R [2012] EWCA Crim 434).  RT was also convicted, six weeks following her release from custody, of a number of driving offences, including driving without a licence or insurance and driving with excessive alcohol.

First instance decision

A claim was made to the Criminal Injuries Compensation Authority (“the CICA”) under the Criminal Injuries Compensation Scheme 2008 in respect of the injuries that she had sustained as a result of being raped.  The CICA declined to make an award on the basis of paragraphs 13(1)(b) and 13(1)(e) of the Scheme.  Those paragraphs state:-

“13. (1) A claims officer may withhold or reduce an award where he or she considers that:

 (b)        the applicant failed to co-operate with the police or other authority in attempting to bring the assailant to justice; or

 […]

 (e)        the applicant’s character as shown by his or her criminal convictions (excluding convictions spent under the Rehabilitation of Offenders Act 1974 at the date of application or death) or by evidence available to the claims officer makes it inappropriate that a full award or any award at all be made.”

RT appealed to the First-Tier Tribunal (“FTT”).  The FTT allowed the appeal to the extent of finding that RT was eligible for an award but reduced the award by 40% in respect of paragraph 13(1)(b) and 30% in respect of paragraph 13(1)(e) (i.e. a total deduction of 70%).

In respect of paragraph 13(1)(b), its reason for making a deduction was that despite the fact that RT was subjected to a catalogue of violence culminating in rape, she was capable of making an autonomous decision not to proceed with her complaint.  The FTT found that RT had failed to cooperate in bringing her assailant to justice.  The FTT also stated that it could not find that RT bore no responsibility for the retraction.

Appeal

RT appealed to the Upper Tribunal.  She argued that the FTT had erred by adding a gloss to the test as set out by paragraph 13(1)(b).  There was no basis for requiring an applicant in RT’s position to prove that she bore “no responsibility” for the retraction.  Furthermore, RT argued, paragraph 13(1)(b) does not specify that an award will be withheld or reduced where there was a failure to “fully” cooperate.  Instead, the CICA (and FTT) should have considered whether the failure to co-operate was reasonable.

RT was joined in her contentions by submissions from Women Against Rape (“WAR”), who argued that there was inadequate consideration of RT’s vulnerability and that in fact, the decision employed old fashioned value judgments by asking questions such was why she went back to H.

The Upper Tribunal agreed that the FTT had erred in considering RT’s autonomy rather than in focusing on the specific wording of the Scheme.  The fact that RT and H appeared to have had a reconciliation over the Christmas period was not relevant and was, in any event, not untypical of the behaviour of victims of domestic abuse.  Furthermore, the Upper Tribunal held that the FTT had paid no regard to the comments by the Lord Chief Justice in relation to RT’s appeal against sentence.

Comment

The Criminal Injuries Compensation Scheme is designed to compensate victims of crime where other avenues of compensation may not be open to them (because, for example, the assailant lacks the means to fulfil any damages award).  The CICA’s resources are limited.  However, applicants will, in some instances, be extremely vulnerable.  The FTT applied too strict an approach to RT’s application without considering why she had behaved in the way that she did and the extremely difficult position she would have been placed in.  Furthermore (although not explicitly adverted to in respect of this issue), the Scheme provides a discretion rather than an obligation to reduce the award.  The Upper Tribunal’s exercise of this discretion reflects an approach which is more in tune with the realities of the circumstances in which victims of rape finds themselves.

Adam Wagner was instructed by WAR to make written submissions.  He had no involvement in the writing of this post.