A and B v Criminal Injuries Compensation Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lord Justice Gross,Lady Justice Sharp |
| Judgment Date | 03 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1534 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/0246 |
| Date | 03 July 2018 |
and
[2018] EWCA Civ 1534
Lord Justice Gross
Lady Justice Sharp
and
Lord Justice Flaux
Case No: C1/2017/0246
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGHT COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Wilkie
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Chamberlain QC and Ms Shu Shin Luh (instructed by Leigh Day) for the Appellants
Ben Collins QC and Mr Robert Moretto (instructed by Philippa Long) for the Government Legal Department
Hearing date: 6 March 2018
Judgment Approved
INTRODUCTION
The Appellants (A and B) appeal against the judgment of Wilkie J, dated 12th January, 2017 (“the judgment”), dismissing their claims for Judicial Review challenging the lawfulness of the Criminal Injuries Compensation Scheme in its 2012 iteration (“the Scheme”), insofar as it concerns applicants for compensation who have unspent criminal convictions which resulted in a custodial sentence or community order.
The Appellants accept that the refusal by the Criminal Injuries Compensation Authority (“CICA”) to award compensation was in accordance with the terms of the Scheme but contend that the relevant provisions of the Scheme are unlawful.
It is convenient to set out at once the provisions of the Scheme which are central to the present appeal:
“ Grounds for withholding or reducing an award
……
26. Annex D sets out the circumstances in which an award under this Scheme will be withheld or reduced because the applicant to whom an award would otherwise be made has unspent convictions.
Annex D: Previous convictions
2. Paragraphs 3 to 6 do not apply to a spent conviction……
3. An award will not be made to an applicant who on the date of their application has a conviction for an offence which resulted in:
(b) a custodial sentence;
(e) a community order;
(g) a sentence equivalent to a sentence under sub-paragraphs (a) to (f) imposed under the law of Northern Ireland or a member state of the European Union, or such a sentence properly imposed in a country outside the European Union.
4. An award will be withheld or reduced where, on the date of their application, the applicant has a conviction for an offence in respect of which a sentence other than a sentence specified in paragraph 3 was imposed unless there are exceptional reasons not to withhold or reduce it.
5. Paragraph 4 does not apply to a conviction for which the only penalty imposed was one or more of an endorsement, penalty points or a fine under Schedule 2 to the Road Traffic Offenders Act 1988.
6. Paragraphs 3 and 4 do not apply in relation to a sentence under the law of a country outside the United Kingdom for conduct which on the date of conviction did not constitute a criminal offence under the law of any part of the United Kingdom.”
Before the Judge, the Appellants' claims were heard together with a joined claim by a Mr McNiece (“the McNiece claim”). The McNiece claim likewise failed and it has not been pursued on appeal.
A number of themes loom large when dealing with this appeal. The background to the particular challenge is the modern scourge of human trafficking, unquestionably a grave evil and rightly now combated, internationally and domestically, in a variety of ways. Inevitably, there is and must be sympathy for those trafficked. But that sympathy is at best an uncertain guide to the determination of these proceedings because combating trafficking and assisting those trafficked are not the only matters to be taken into account. The challenge before us also gives rise to issues going to the allocation of scarce taxpayer funding by way of a gesture of public solidarity for victims of crime. In considering a challenge to the Scheme it is therefore necessary to keep well in mind the distinct roles of the Legislature, Executive and Judiciary. Plainly, there is scope for different views as to the limits of and the exclusions from such a Scheme but the Court's task is confined to whether the Appellants' challenge to the lawfulness of the Scheme — approved as it has been by both Parliament and the Executive — is entitled to succeed.
FACTS AND BACKGROUND
The underlying facts are not in dispute and I gratefully adopt the Judge's summary, at [7] and following in the judgment.
The Appellants are twin brothers and Lithuanian nationals, born on the 7 th December 1986. To the extent that it is relevant, after a very difficult childhood, they were placed in care.
A was convicted in Lithuania of burglary on the 6 th June, 2010 and was sentenced to 3 years' imprisonment. B was convicted in Lithuania of theft on the 11 th December, 2011 and was sentenced to 11 months' imprisonment.
Under the Rehabilitation of Offenders Act 1974 (as amended), in A's case the sentence does not become spent until the 6 th June, 2020. In B's case, the conviction became spent on the 11 th November, 2016.
In 2013, thus a considerable time after their convictions, the Appellants were trafficked from Lithuania to the United Kingdom and, as expressed by the Judge:
“….subjected to labour exploitation and abuse. Their experiences between the dates of the 1 st June and the 30 th October 2013 constituted criminal offences for which, on the 22 nd January 20016, the traffickers responsible were convicted receiving custodial sentences of 3 1/2 years. Slavery and trafficking prevention orders were made under the Modern Slavery Act 2015.”
Interposing here, the Appellants' status as victims of modern slavery and trafficking is common ground and was confirmed by decisions of a branch of the National Crime Agency (“NCA”) on the 25 th and 26 th November, 2013.
The Appellants applied to the CICA for compensation under the Scheme on the 16 th June, 2016.
It follows that, at the time of their application, each Appellant had an unspent conviction which resulted in a custodial sentence.
On the 7 th July, 2016, the CICA Claims Officer wrote to each of the Appellants, refusing to make an award of compensation for their criminal injuries, in the following terms:
“I am sorry to tell you that I have decided not to make any award because, under paragraph 26 of the Scheme, Annex D sets out the circumstances in which an award under this Scheme will be withheld or reduced because the applicant, to whom an award would otherwise be made, has unspent convictions.”
For completeness, as the Respondents correctly point out, the 7 th July letter did not go beyond declining to make an award by reason of para. 26 and Annex D of the Scheme. The letter said, in terms, that the CICA had not made any decision in relation to any other paragraphs of the Scheme.
Neither Appellant launched a review or an appeal under the Scheme on the basis that as the terms of the Scheme had been properly applied any such application would inevitably fail.
Before the Judge, the Appellants contended that the provisions of the Scheme precluding an award of compensation to those with unspent convictions resulting in a custodial or community offence were unlawful on the following grounds:
i) They constituted a disproportionate interference in the Appellants' rights under Article 1 of Protocol 1 (“A1P1”) to the European Convention on Human Rights (“ECHR”).
ii) They were unjustifiably discriminatory contrary to A1P1 read together with Art. 14 of the ECHR.
iii) They were in breach of Art. 17 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (“the Directive”).
iv) They were in breach of A1P1 read together with Art. 4 of the ECHR.
The Judge rejected all four grounds but granted the Appellants permission to appeal. On the appeal, the Appellants do not pursue grounds i), ii) and iv). Instead they do pursue ground iii), together with an additional ground – to which the Respondents do not object.
There are, accordingly, two grounds of appeal before this Court:
i) Whether the terms of the Scheme amount to a breach of Art. 17 of the Directive? (“Ground I: Art. 17 of the Directive”);
ii) Whether the terms of the Scheme fall within the ambit of Art. 4 ECHR and amount to unjustified discrimination against the Appellants (on the ground of their “other status” of having unspent convictions for offences which resulted in a custodial or community sentence) contrary to Art. 14 ECHR, read with Art. 4? (“Ground II: Discrimination”).
I turn directly to these Grounds.
GROUND I: ART. 17 OF THE DIRECTIVE
(1) The legal framework: The Criminal Injuries Compensation Act 1995 (“the 1995 Act”) provides by s.1(1) that the Secretary of State shall make arrangements “for the payment of compensation to, or in respect of, persons who have sustained” criminal injuries. Any such arrangements (s.1(2)) “shall include the making of a scheme” providing, in particular, for the circumstances in which awards may be made and the categories of person to whom awards may be made. By s.3(1):
“The Scheme may, in particular, include provision –
(a) as to the circumstances in which an award may be withheld or the amount of compensation reduced;”
S.11 of the 1995 Act provides that, as happened in the case of the Scheme, the Secretary of State shall lay a draft of it before Parliament and the Secretary of State “…shall not make the Scheme unless the draft has been approved by a resolution of each House”. Para. 1 of the Scheme indeed so records.
For present purposes, key provisions of the Scheme have already been set out. Certain other provisions must now be referred to. Para. 4 provides that a person may be eligible for an award under the Scheme “…if they sustain a criminal...
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