Criminal Injuries Compensation: The Constitutional Issue

DOIhttp://doi.org/10.1111/j.1468-2230.1996.tb02067.x
Publication Date01 Jan 1996
AuthorG. Ganz
CASES
Criminal Injuries Compensation: The Constitutional
Issue
G.
Ganz*
Even amongst recent causes cClbbres*
R
v
Secretary
of
State for the Home
Department, ex parte Fire Brigades Union2
stands out
as
exceptional. It is
concerned with the most fundamental issues of our unwritten Constitution, namely
the relationships between Parliament, the executive and the courts. It recognises
explicitly, albeit in
a
dissenting j~dgment,~ the function of the courts to com-
pensate
for
the deficiencies of Parliament, in holding the executive responsible for
the misuse of powers, which Sedley J has characterised extra-judicially
as
‘judicial
assertiveness to compensate for, and in places repair, dysfunctions in the
democratic process’
.4
It is indeed
a
landmark decision which together with other
notable recent cases5 heralds the assumption of
a
constitutional role by the
judiciary in redrawing the boundaries between the courts and Parliament.
In the light of its seismic importance it is perhaps not surprising that there were
deep divisions between the judges involved in the case. On
a
headcount they were
evenly divided but there was a crucial majority of
2:l
in the Court of Appeal6 and
3:2
in the House of Lords against the Home Secretary. The legal issues are
complex and were differently decided in the Court
of
Appeal and the House of
Lords. In analysing them it
is
easy to lose the wood for the trees and in particular
the political reality and practical outcome of the case. It
is
best to
start
with a brief
history of events.
In
1964
a Criminal Injuries Compensation Scheme for victims of violent crimes
was announced in Parliament and set out in
a
White Paper.7 It had no statutory
basis except for the annual Appropriation Acts which authorised expenditure for
the scheme. Payments were made on the same basis
as
tort damages. As a result of
the recommendation of the Royal Commission on Civil Liability8 the scheme was
finally embodied in the Criminal Justice Act 198S9 but the relevant provisions
were not to come into force until the Home Secretary made an order to that
effect.
lo
As the cost of the scheme escalated, the government changed its mind and
*
Faculty
of
Law, University
of
Southampton
I
R
v
Secretary
of
State for Foreign Affairs, ex parte World Development Movement Ltd
[
19951
1
WLR
386;
M
v
Home
Ofice
[I9921 2 WLR 73.
2
[1995]
2
WLR
464,
HL.
3
at
p
488 A-C, Lord Mustill.
4
London Review
of
Books,
11
May 1995 p 13.
5
R
v
Secretary
of
State for Transport, ex parte Factortame Ltd
(No
2)
[I9911
AC 603 HL;
R
v
Secretary
of
State for Employment, ex parte
Equal
Opportunities
Commission
[
19941
2
WLR
409,
HL.
6
[I9951
2
WLR
1.
7 Cmnd 2323.
8
Cmnd 7054-1 (1978).
9
Sections
108
to 117 and Schedules 6
&
7.
10
Section 171(1).
0
The Modern
Law
Review Limited
19%
(MLR
59:
I,
January). Published by
Blackwell
Publishers,
108
Cowley Road, Oxford OX4 IJF and 238 Main
Street,
Cambridge,
MA
02142,
USA.
95

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