The Criminal Injuries Compensation Board would never have existed had all violent criminals been possessed of ample and accessible funds for compensating their victims.

That simple fact might have served as a signpost to keep the board's path straight, narrow and uncomplicated.

What precisely did get into its collective head is difficult to know but it led eventually to R v CICB, ex p.

Gambles, [1994] The Times, 5 January.An impartial observer might have been tempted to wonder how you equated an unarmed 'squaring up' with a disfiguring attack with a broken glass.

These instincts would have been vindicated by the outcome of Mr Gambles' application for judicial review, wherein Mr Justice Sedley made an order of certiorari quashing the CICB's decision.How did the board get itself into the position where decisions ran contrary to conventional common sense but where it was, when challenged, unable to justify them to the satisfaction of the court?Mr Gambles would undoubtedly have recovered damages at common law.

In Lane v Holloway [1967] 3 All ER 129 a rather more culpable plaintiff than Mr Gambles overcame the defences of volenti and ex turpi causa and, in the words of Lord Denning MR: 'Even if the fight started by being unlawful, I think that one of them can sue the other for damages for a subsequent injury if it was inflicted by a weapon or a savage blow out of all proportion to the occasion.'The plight of the victim whose common law right was useless against an impecunious attacker provoked increasing public and parliamentary interest in the 1950s and 1960s.A working party report in June 1961 (Cmnd 1406), a white paper in March 1964 (Cmnd 2323) and a parliamentary debate led to the setting up of the board.While the purpose of the proposed scheme remained as originally conceived, fiscal considerations and certain matters of principle, such as government repugnance at the notion of accepting legal liability for the acts of criminals, militated against anything so simple as the assumption by the state of the role of i nsurance company.Eventually the government determined on a scheme which was flexible, experimental and non-statutory, with lump sum payments made on an ex gratia basis, assessed on the basis of common law damages, and which would take account of the victim's share of blame.

This 'constitutional anomaly' has been characterised as 'a set of administrative instructions promulgated under the royal prerogative and setting out the circumstances in which compensation would be paid' and, more shortly, 'a public announcement of what the government was willing to do'.The 1964 scheme was revised in 1969, 1979 and 1990, but at no time has any alteration of its basic purpose been made known to Parliament.

Hence Mr Mellor on 2 December 1985: 'Compensation is assessed in each individual case by the board on the basis of the damages to which the applicant would be entitled in a civil action.'The relevant portions of para 6 of the 1979 scheme, under which Mr Gambles' application was refused and which did not differ in essentials from other versions, read: 'The board may withhold or reduce compensation if they consider that...(c) having regard to the conduct of the applicant before, during or after the events...it is inappropriate that a full award, or any award at all, be granted.'Under this wide discretion, Mr Gambles would formerly have entertained high hopes of an award, as witness a 'fighting' case referred to in the board's annual report for 1970: 'We made an award, albeit a reduced one, on the grounds that the violence used was out of all proportion to the provocation used.'These selected case reports were the board's means of publicising current thinking in certain classes of case as were the 'statements' and 'guide' which it periodically put out.A gradual hardening of interpretation, supported by no evident authority, manifested itself from about 1986 until it found expression in para 30 of the 1990 guide: 'Fighting.

Compensation will not usually be awarded...(c) if the injury occurred in a fight...even if the consequences go beyond what the victim expects...with the most serious injury.

The fact that the offender goes further and uses a weapon will only make a difference in exceptional circumstances.' The guide also carried the disclaimer that it was an 'aid' for applicants and that each case would be determined on its merits solely in accordance with the scheme.Sedley J held that the board had missed out an essential part of its reasoning, namely the extent to which the applicant's actual conduct impacted on the appropriateness of an award, and that the duty of the board under para 6(c) was to establish 'a rational and proportionate nexus' between the conduct and the reduction or extinguishment of an award.The board declined the opportunity of putting forward its guide as a policy document within the meaning of British Oxygen [1971] AC 610, so para 6 of the scheme alone governed the position.The board's abandonment of its guide as a set of rules, when challenged, does not alter the apparent fact that that is how the board has on occasions used it.

It also leaves the worrying reflection of the amount of compensation denied in the past to deserving applicants and the number of would-be applicants deterred by the discredited para 30 before even putting pen to paper.