A Criminal Injuries Compensation Appeals Panel erred in refusing compensation for alleged sexual assaults on the ground that the applicant had consented because it failed to consider whether the consent was "real" consent.Appeal by the applicant ('E') from a judgment of Silber J refusing judicial review of the decision of the Criminal Injuries Compensation Appeal Panel that E was not entitled to compensation for injuries suffered because he had consented to the sexual activity on which his application for compensation was based. E applied for compensation under the Criminal Injuries Compensation Scheme ('the Scheme') in relation to a number of alleged indecent assaults to which he was subjected by his cellmate ('F') while on remand in prison. The panel found that E's IQ was sufficiently low that he could not have consented at law to the indecent assaults on him for the purposes of s.15 Sexual Offences Act 1956. However the panel found on the evidence that E did in fact consent with the result that he was not entitled to compensation. The judge upheld that decision and E appealed.HELD: (1) The court in R v Criminal Injuries Compensation Appeals Panel, ex parte A : R v Criminal Injuries Compensation Appeals Panel, ex parte B (2001) 2 WLR 1452 recognised that a crime could be a "crime of violence" for the purposes of the Scheme as long as there was not "real consent". Real consent might exclude a crime from eligibility under the Scheme. Consent that was not real would not do so. Nor would submission which was not the same thing as consent. (2) In each case the panel had to ask whether the proper conclusion on the facts was that the applicant was a victim of a crime of violence in relation to what had happened. That would be the situation if there was no real consent. (3) The panel erred in failing to consider the relationship between F and E and, despite the fact that E had consented, whether that consent was real so as to prevent his being a victim. The panel failed to take into account the fact that if initially E was not a consenting party, he would have been the victim of a "crime of violence", even though he subsequently played an active part having been corrupted by F. The panel also failed to consider the relative degrees of responsibility of E and F for what happened. (4) The panel decision should be quashed and E's application remitted to be reheard by a different panel.Appeal allowed.

[2003] EWCA Civ 234