AUGUST v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Mr Carl Wade August, is a United Kingdom national, who was born in 1976 and lives on the Isle of Wight. He is represented before the Court by Ms Y. Spencer of the Children’s Legal Centre. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1985, the applicant, aged 8, was taken into voluntary care by the local authority. In 1987, he was diagnosed as being a disturbed child and in March 1990 assessed as being in need of psychiatric assessment. In the summer of 1990, while placed at a residential centre, the applicant, aged 13 years, met C., a 53 year-old man, in a public lavatory. Oral sex was performed by both parties and the applicant was paid ten pounds sterling. Over the next four months, the applicant alleged that C. committed further acts of gross indecency and buggery on the applicant. The applicant informed the social services who took no action. He then informed the police. On 9 June 1993, C. was convicted of one count of buggery involving the applicant in which the evidence was that C. was the passive participant and two counts of gross indecency. He was sentenced to seven years’ imprisonment. There was a finding by the judge on sentencing that the applicant did not appear older than his years and that C. posed a serious risk to other children. On appeal, the Court of Appeal reduced C.’s sentence to five years, noting that the judge had been entitled to conclude that C. was likely to commit offences which might cause serious harm in the future but that the sentence was too high in the special circumstances of this case, in particular the part played by the victim “who had gone to the public lavatory for the purpose of seeking out someone to obtain money from them for homosexual activity and who was the active partner in the only act of buggery which took place”. On 3 April 1997, the applicant applied to the Criminal Injuries Compensation Authority (CICA). A report dated 22 December 1997 by a consultant psychiatrist prepared for this purpose indicated that the applicant had shown behavioural signs and indicators that suggested that he had been sexually abused before the age of ten. On 13 June 1997, the CICA rejected the applicant’s application for compensation on the grounds that he was not the victim of violence as required under paragraph 8(a) of the Criminal Injuries Compensation Scheme, that his own conduct had contributed to the incident and that in the circumstances it was not appropriate that he should receive an award and that they had taken into account the applicant’s unlawful conduct pursuant to Article 13(e) of the Scheme (following the offences, the applicant had himself committed three offences against the person, one offence against property, five offences of theft and one of failing to surrender to bail). On 10 November 1997, the CICA upheld its decision on the applicant’s application for review. On 21 January 1998, the applicant appealed against the decision, arguing that inter alia as a child he had been incapable of consenting to the sexual acts in question, and that non-consensual indecent assault and buggery could not be other than a crime of violence. At the hearing before the CIC Appeal Panel, at which C., the applicant and the investigating police officer gave evidence, the applicant’s representative accepted that the applicant had participated “voluntarily” in the acts, in that he was not forced by threats of physical violence but submitted that his consent was vitiated by his age, history in care and earlier history of sexual abuse. By decision of 3 November 1998, amplified by further reasons on 18 January 1999, the Appeal Panel rejected the appeal on the ground that there had not been a crime of violence. The applicant applied for judicial review on 3 February 1999. A further psychiatric report pointed out that the applicant was a damaged and vulnerable child with a serious mental health problem, that predatory paedophiles targeted such boys and that given C.’s age, it could not be regarded that the applicant was able to make an “informed choice” in the matter. On 4 November 1999, the High Court refused the application. Mr Justice Owen held that it did not follow that because there could not be a consent valid in law that there was a crime of violence. It was a matter of fact to be decided by the panel who heard the witnesses and no error of law was disclosed by their decision. On 18 December 2000, the Court of Appeal refused his appeal, agreeing that a sexual offence was not per se a crime of violence and that whether violence was involved depended on the facts of the individual case. Leave to appeal was refused by the House of Lords on 26 March 2002. The Criminal Injuries Compensation Scheme provides for the payment of compensation to persons who have sustained criminal injury. “8. For the purposes of this Scheme, ‘criminal injury’ means one or more personal injuries as described in the following paragraph ... a crime of violence (including arson, fire-raising or an act of poisoning ... 13. A claims officer may withhold or reduce an award where he considers that: ... (d) the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made; or (e) the applicant’s character as shown by his criminal convictions ... makes it inappropriate that a full award or any award at all be made ...”