[1] At about 12.40 to 12.45 a.m. on Sunday 9 May 1999, Gerard Morrissey, a taxi driver in Airdrie, picked up a Mr. and Mrs. Thomas and Yvonne Lafferty, as fare-paying passengers to take them to their destination. They both sat in the back of the taxi. Their route took them along Broomknoll Street, Airdrie, where the traffic was quite heavy. When there, the taxi driver was confronted and the path of the taxi impeded by a man whom he knew by sight, who was James Bennett. He was drunk and anxious to obtain a taxi himself. Gerard Morrissey tried to drive his taxi round James Bennett, but the latter moved to block the path of the taxi, so that it had to stop again. Thereafter James Bennett sat on the bonnet of the taxi. The taxi driver then radioed his control room to ask them to inform the police that a man was behaving in the way described. Mrs. Yvonne Lafferty then got out of the rear near-side door of the taxi, in order to remonstrate with James Bennett. An altercation followed between them. Following that, Thomas Lafferty, having also emerged from the taxi, became involved in the altercation. The outcome of these events was that Thomas Lafferty pushed James Bennett on the chest, with the result that he fell backwards, striking his head on the kerb of the pavement and sustaining very serious injuries. The police were then called and Thomas Lafferty was charged with assault and attempted murder. However, he was not detained in custody, but released on an undertaking to appear in court, if requested to do so. The matter was reported to the Procurator Fiscal, but no proceedings followed. The details of the events which took place during the course of the altercation and ended with James Bennett sustaining these injuries were controversial.

[2] On 12 July 1999, an application was made on behalf of James Bennett for criminal injuries compensation under the Criminal Injuries Compensation Scheme (Issue Number Two 4/99). Under the Scheme compensation may be paid in accordance with the Scheme to an applicant who has sustained a "criminal injury" on or after 1 August 1964. Certain parts of the Scheme require to be noted in the present context. Paragraph 8 provides:

Paragraph 13 of the Scheme provides that:

Paragraph 18 of the Scheme provides: "It will be for the applicant to make out his case including ... ".

[3] By letter dated 24 May 2000, the Criminal Injuries Compensation Authority declined to make an award. The reason for this was that:

An application for a review of this decision was made to the Authority. On 22 December 2000, this also was refused under paragraph 13(d) of the Scheme for the following expanded reasons:

[4] The foregoing decision of the Authority was then the subject of an appeal to the respondents. An oral hearing was held on 22 November 2001. At this hearing, Gerard Morrissey appeared and gave oral evidence, as did Detective Sergeant John Blackburn, the reporting officer. James Bennett was unable to give evidence in any form because of the neurological effects of his injuries. Thomas and Yvonne Lafferty did not attend the hearing. However, a number of written statements from them and others were available for consideration. By a written judgment of 26 November 2001, the respondents refused the appeal on the basis that James Bennett had not suffered a "criminal injury", within the meaning of paragraph 8 of the Scheme. In particular, James Bennett's injuries were not attributable to a "crime of violence".

[5] In order to render comprehensible what follows, it is appropriate at this point to quote certain passages from the judgment of the respondents:

[6] Following that decision by the respondents, the petitioner and reclaimer presented a petition for judicial review of it. In the petition, reduction of the decision made on or about 22 November 2001, to the effect that James Bennett was not the victim of a crime of violence for the purposes of paragraph 8 of the Scheme is sought. The petitioner also craves the court to pronounce such further order as might seem to the court to be just and reasonable in all the circumstances of the case. This petition came before the Lord Ordinary for a hearing on 4 November 2003. On 9 December 2003, the Lord Ordinary repelled the petitioner's first to third pleas in law and sustained the respondents' second plea in law, to the effect that the decision complained of being lawful et separatim reasonable, the orders sought should be refused; accordingly he refused to pronounce the orders sought in Statement of Fact 3 in the petition. Against that interlocutor the petitioner and reclaimer has reclaimed to this court.

[7] The petitioner and reclaimer has tabled four grounds of appeal in the following terms:

[8] Counsel for the petitioner and reclaimer stated that there were two issues in the appeal: (1) whether the respondents and the Lord Ordinary considered properly whether excessive force was used in relation to the issue of whether there had been a "crime of violence"; and (2) the approach of the respondents and the Lord Ordinary towards a factual conflict between two written statements given by Mr. Gerard Morrissey, the taxi driver.

[9] In relation to the first of these issues, counsel pointed out that, in statements to the police, Mrs. Yvonne Lafferty had said that James Bennett had grabbed her by the throat and was holding on. The respondents had accepted that James Bennett's arms had been outstretched, but they had held that he had not had any hostile or aggressive intent towards her. The respondents had found that Thomas Lafferty had seen a drunken man with arms outstretched come up to and lay hands on his wife. It was submitted that that did not amount to a finding of an assault committed by James Bennett. The contact which, it might be, occurred between James Bennett and Yvonne Lafferty might have been accidental, involving a drunken and stumbling man and a woman approaching him to lead him off the carriageway of the road. If the contact had been accidental, there could have been no assault. However, it was accepted that Mr. Lafferty had said in a statement that "the guy just grabbed her". That might represent the perception of an assault. The stated position of Gerard Morrissey was important. In his statement to the police he had said that he was unable to see if there was any contact between James Bennett and Yvonne Lafferty. Thomas Lafferty had got out of the taxi, put his two hands on James Bennett's chest and pushed him back. He had thought that this action was "over the top". It was submitted that that description of the event amounted to a description of an assault by Thomas Lafferty on James Bennett, by way of punishment or retaliation for what the latter had done earlier.

[10] Counsel submitted that the respondents had made insufficient findings in fact to justify their conclusion that Thomas Lafferty had not committed a crime of violence. That amounted to an error of law on their part. The onus of proof of a crime of violence rested on the applicant for compensation, the standard of proof being on a balance of probabilities. Counsel accepted that, in the last resort, the issue was not whether there had in fact been an assault by James Bennett upon Yvonne Lafferty, but what had been the reasonable perception of Thomas Lafferty concerning what was happening. His actions might be capable of being justified on the basis of self-defence, or more properly defence of another, even though there had been no such assault, if, in all the circumstances, he had acted reasonably and without cruel excess. In that connection it was important to note the contents of the precognition of Gerard Morrissey who, it was submitted, was the most reliable eye witness of the events. The description which he gave in his precognition demonstrated the use of excessive force by Thomas Lafferty. He there stated that he had been taken aback by the force that he had seen being used. Unfortunately, however, the respondents had simply made insufficient findings of fact to support the decision which they had reached.

[11] Counsel next turned to the second issue which he considered arose, the approach of the respondents towards what they perceived as a factual conflict between the police statement and precognition of Gerard Morrissey. It was submitted that the respondents should have appreciated that, in fact, there was no material inconsistency between those statements. The respondents should have given full weight to the precognition. Alternatively, if they had some reason for not doing that, which they had not indicated, the appropriate course would have been for them to raise the alleged inconsistency with Gerard Morrissey in oral examination. Their approach to the matter in their judgment was odd. The respondents had proceeded in an unfair way to prefer the police statement, although they could have sought to resolve any conflict which they perceived. However, it was accepted that, in the end, the underlying issue was whether Thomas Lafferty had used excessive force. The court should allow the reclaiming motion, reduce the decision of the respondents and remit the matter to a differently constituted appeal panel for a fresh hearing.

[12] So far as the Opinion of the Lord Ordinary was concerned, it was accepted that he had focused on pertinent questions but, in paragraph [18] of his Opinion he had reached an unwarranted conclusion concerning the level of force used by Thomas Lafferty, as had the respondents themselves. If, as submitted, the respondents' conclusion was untenable, so also was that of the Lord Ordinary.

[13] Counsel for the respondents moved us to refuse the reclaiming motion. No matters had been brought to the attention of the court showing any error on the part of the respondents of such a nature as to render its decision unlawful or unreasonable. No valid criticism could be made of the decision of the Lord Ordinary in refusing to reduce their decision. There was no dispute between the parties as to the appropriate disposal of the matter, on the assumption that the respondents' submissions were wrong. It was also a matter of agreement that the court did not require to be concerned with any issues relating to paragraph 13(d) of the Criminal Injuries Compensation Scheme. Such an issue might arise in the event of a fresh hearing being ordered before a differently constituted appeal panel.

[14] Turning to the manner in which the respondents had handled the appeal before them, it was submitted that they had properly considered the issues and had applied a correct understanding of the law. There were no shortcomings in their findings of fact, which were sufficient to support the decision which they had reached. They had concluded that James Bennett had shown no malice or criminal intent towards Yvonne Lafferty; however, what was important was Thomas Lafferty's perception of the situation, as the respondents had appreciated. They had made a finding as to what Thomas Lafferty had seen. There were two questions which the respondents had had to consider, first, were Thomas Lafferty's actions of such a kind as to amount to an assault, in the absence of justification; and, second, was there a basis for a good plea of self-defence, or more properly, defence of another. The respondents had recognised that these two issues arose and had dealt with them.

[15] It was accepted that the respondents had made no mention of the issue of whether a means of escape had been available to Yvonne Lafferty or of rescue to Thomas Lafferty. However, there was no indication that those matters had been raised as issues at the hearing before the respondents. That being the case, there was no reason for the court to be concerned with them now. It was important to recognise that Thomas Lafferty's action was described throughout as a push, not a punch or some other violent action. No weapon of any kind had been used in the incident. The violence employed by Thomas Lafferty had not been prolonged; it amounted to a simple push. In all the circumstances, the respondents were justified in concluding that the force used by Thomas Lafferty was not excessive.

[16] Turning to the second main submission of counsel for the petitioner and reclaimer, counsel for the respondents considered their treatment of the police statement and precognition of Gerard Morrissey. If there had been any error in the treatment of these documents by the respondents, that had proved to be a matter of no materiality in the circumstances. While it was accepted that the respondents stated in their judgment that they had preferred the police statement to the precognition, the fact was that, to some extent, they had relied upon the contents of the precognition. In particular, the respondents had concluded that they could not accept Yvonne Lafferty's evidence to the effect that she had been grabbed by the throat by James Bennett. There was little to be said as to the manner in which the hearing had been conducted by the respondents; Gerard Morrissey had been called to give evidence. His police statement and his precognition had both been put to him as statements of his evidence. No attempt had been made to explore any possible conflicts between the contents of the two documents.

[17] We consider that it was correctly recognised by both parties to the reclaiming motion that the important issue to be considered at the outset was not so much what James Bennett had done, prior to being pushed by Thomas Lafferty, but what had been Thomas Lafferty's perception of what had been happening prior to that action. In that connection, the respondents have made an important finding in their judgment in the following terms:

We consider that that finding may properly be seen as one that Thomas Lafferty perceived that his wife was being assaulted, albeit in a limited way, by James Bennett, who was plainly drunk. In this connection, it is clear from the respondents' findings that they did not consider that there was any question of James Bennett having put his hands round Yvonne Lafferty's neck to throttle her. They plainly rejected her evidence to that effect. In our view nothing in either the police statement or the precognition of Gerard Morrissey can be seen as undermining the respondents' finding. In his police statement, he stated that he had been unable to see if there was any contact between James Bennett and Yvonne Lafferty. In his precognition he did not exclude the possibility that James Bennett's hands had come into contact with Yvonne Lafferty. The respondents' finding in relation to the perception of Thomas Lafferty had a possible factual basis in the statements made by Thomas Lafferty to Detective Sergeant Blackburn, during the tape recorded interview conducted with him. In answer to questions by the police Thomas Lafferty indicated that James Bennett had had a hold of his wife; his hands had been on his wife.

[18] Against this background of fact, it is clear to us that the respondents gave careful consideration to the relevant issues in relation to the matter of justification for Thomas Lafferty's action. Although they stated inappropriately that they saw no good reason to differ from the conclusion of the procurator fiscal, which was simply that Thomas Lafferty should not be prosecuted, a decision that might have been based on a number of considerations, we have no doubt that the respondents then went on to state their own conclusion, which was that Thomas Lafferty had not used excessive force in the circumstances. They had taken, as they say, a common sense view of the incident. The circumstances were that it occurred in the very early hours of Sunday morning when James Bennett, a drunken man, had made himself a public nuisance. Physical contact had come about between that man and Yvonne Lafferty. In saying that the respondents considered that Thomas Lafferty's actions were "understandable and do not amount to a crime of violence", we consider that the respondents are, in effect, saying that the actions of Thomas Lafferty were within the range of what could be seen as a reasonable response in the circumstances as perceived by him. We consider that there was a sufficient basis for this conclusion in the factual findings made by the respondents.

[19] We have given some consideration to the issue of means of escape or rescue, which, in appropriate circumstances, may be relevant where a question of self-defence or the defence of another arises. It is true that the judgment of the respondents is completely silent on this matter. We do not regard that state of affairs as undermining their conclusion. Plainly, in the proceedings in this case the onus was on the applicant for compensation to prove his case, in terms of paragraph 18 of the Scheme. Faced with an issue as to whether self-defence, or the defence of another, was a factor in the case, it was, in our opinion, a matter for the applicant to raise as part of his case, if it were considered that a means of escape, or rescue, existed for Thomas Lafferty as a reasonable alternative to the use of violence. From the fact that there is no mention of this aspect of the matter in the respondents' judgment, we can only conclude that no such issue was raised on behalf of the applicant. Against that background we see no reason why that matter should be considered now.

[20] We observe that the respondents concluded that: "A simple push would clearly be a crime of violence". We have some difficulty in accepting the validity of that proposition in all circumstances. For example, if an individual were faced with a situation in which two other individuals were engaged in fighting, that person might push those other individuals apart in order to bring such a disturbance to an end. No criminal intent would be associated with that action and, accordingly, in those circumstances, such an action would not amount to the crime of assault. However, even if that part of the respondents' judgment involves an erroneous view in law, it is an error which confers an advantage upon the petitioner and reclaimer in the circumstances of this case. Accordingly, it appears to us that it is of no materiality in the present context.

[21] In all of these circumstances, we have reached the conclusion that the respondents have made sufficient findings in fact to justify the decision which they made that the actions of Thomas Lafferty did not amount to a "crime of violence".

[22] Turning to the second main issue raised on behalf of the petitioner and reclaimer, the alleged conflict between the contents of the police statement and precognition of Gerard Morrissey and the approach taken by the respondents to that matter, we have come to the conclusion that there is no substance in the criticisms made. We are far from satisfied that there was any material conflict between the contents of these two statements. We consider that the differences between them are rather differences of emphasis than anything else. While the respondents have stated in their judgment that they preferred the statement to the police to the precognition, the fact is that, to some degree, they have taken into account the contents of the precognition. On the whole matter, in our view, their approach to these sources of evidence cannot be said to involve procedural error or unfairness.

[23] On the whole matter we reject the criticisms advanced of the respondents' decision and the criticisms of the Lord Ordinary's assessment of that decision. Accordingly, the reclaiming motion is refused.