D.j.s. V. The Criminal Injuries Compensation Appeal Panel+the Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Mackay of Drumadoon,Lord Osborne |
| Judgment Date | 08 June 2007 |
| Neutral Citation | [2007] CSIH 49 |
| Court | Court of Session |
| Date | 08 June 2007 |
| Published date | 08 June 2007 |
| Docket Number | P1473/02 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Mackay of Drumadoon Lady Dorrian | [2007] CSIH 49 P1473/02 OPINION OF THE COURT delivered by LORD OSBORNE in RECLAIMING MOTION in PETITION AND ANSWERS in the cause D.J.S. Petitioner and Reclaimer; against (FIRST) THE CRIMINAL INJURIES COMPENSATION APPEAL PANEL; and (SECOND) THE ADVOCATE GENERAL FOR SCOTLAND Respondents: _______ |
Alt: Moynihan, Q.C., Lindsay; H.F. MacDiarmid, Solicitor to the Advocate General for Scotland (Respondents)
8 June 2007
The background circumstances
[1] A Criminal Injuries Compensation Scheme was set up in 1964 under prerogative powers, "the 1964 Scheme". It came into operation on 1 August 1964. The purpose of that Scheme was the provision of compensation for victims of crimes of violence. Applications for compensation to the Criminal Injuries Compensation Board, "the Board", under the 1964 Scheme, could be entertained only where the injury concerned had been incurred after the commencement of the Scheme. Paragraph 7 of the 1964 Scheme provided:
"Offences committed against a member of the offender's family living with him at the time will be excluded altogether."
The reasons for that exclusion were, first, the potential difficulties perceived as being involved in investigating claims based on such offences; and, second, the need to ensure that offenders did not benefit from any award made. A copy of the 1964 Scheme is No.7/3 of process.
[2] A revised Criminal Injuries Compensation Scheme was introduced in 1979, "the 1979 Scheme". It came into effect on 1 October 1979. It applied only to incidents occurring on or after that date. The principal change effected in the 1979 Scheme was to extend its operation to the victims of family violence. A copy of that Scheme is No.7/4 of process. It was succeeded by the Criminal Injuries Compensation Scheme 1990, "the 1990 Scheme", which applied to all applications for compensation received by the Board on or after 1 February 1990. A copy of that Scheme is No.7/5 of process. Both the 1979 Scheme and the 1990 Scheme were promulgated under prerogative powers.
[3] The Criminal Injuries Compensation Act 1995, "the 1995 Act", received the Royal Assent on 8 November 1995, on which date it came into force. Under section 1 of that Act, the Secretary of State was required to make arrangements for the payment of compensation to, or in respect of, persons who had sustained one or more criminal injuries. Section 1(2) provided:
"(2) Any such arrangements shall include the making of a Scheme providing, in particular, for -
(a) the circumstances in which awards may be made; and
(b) the categories of persons to whom awards may be made."
Section 3(1) of the 1995 Act provided:
"(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;
(b) for an award to be made subject to conditions;
(c) for the whole or any part of any compensation to be repayable in specified circumstances;
(d) for compensation to be held subject to trusts, in such cases as may be determined in accordance with the Scheme;
(e) requiring claims under the Scheme to be made within such periods as may be specified by the Scheme; and
(f) imposing other time limits."
Section 11 of the 1995 Act contains detailed provisions relating to Parliamentary control of the making of the Criminal Injuries Compensation Scheme contemplated in the Act.
[4] In due course, the Secretary of State, in exercise of the powers conferred on him by sections 1 to 6 and 12 of the 1995 Act made the Criminal Injuries Compensation Scheme 1996, a draft thereof having been approved by both Houses of Parliament, "the 1996 Scheme". In terms of paragraph 83 of that Scheme, it came into force on 1 April 1996. All applications for compensation received by the Criminal Injuries Compensation Board on or after that date were to be passed to a new Criminal Injuries Compensation Authority, "the Authority", to be dealt with under the1996 Scheme. Paragraph 84 of the 1996 Scheme provided that applications for compensation received by the Board before 1 April 1996 were to be dealt with according to the provisions of the 1990 Scheme and, where appropriate, the earlier Schemes. It should be recorded that, subsequently, the Secretary of State, in exercise of the powers already mentioned, made the Criminal Injuries Compensation Scheme 2001, "the 2001 Scheme", a draft of which had been approved by both Houses of Parliament. Under paragraph 83 of that Scheme, its provisions came into force on 1 April 2001. Applications for compensation received by the Authority on or after that date were to be dealt with under the terms of the 2001 Scheme, with certain qualifications which are not material in the present context. In terms of paragraph 84 of the 2001 Scheme, applications for compensation that had been received by the Authority or by the Board before 1 April 2001 were to continue to be dealt with according to either the provisions of the 1996 Scheme, or the provisions of the 1990 Scheme, as the case might be.
[5] It is appropriate to note certain provisions of the 1996 Scheme relating to eligibility to apply for compensation, which are important in the context of the present case. Paragraph 6 of that Scheme provides:
"6. Compensation may be paid in accordance with this Scheme:
(a) to an applicant who has sustained a criminal injury on or after 1 August 1964; ...".
Paragraph 7 provides:
"7. No compensation will be paid under this Scheme in the following circumstances: ...
(b) where the criminal injury was sustained before 1 October 1979 and the victim and the assailant were living together at the time as members of the same family."
Paragraph 8 of the 1996 Scheme defines "criminal injury" for the purposes of the Scheme as meaning "one or more personal injuries ... directly attributable to: (a) a crime of violence ...". Paragraph 9 of the 1996 Scheme provides that, for the purposes of that Scheme,
" ... personal injury includes physical injury ..., mental injury (that is, a medically recognised psychiatric or psychological illness) and disease (that is, a medically recognised illness or condition). Mental injury or disease may either result directly from the physical injury or occur without any physical injury, but compensation will not be payable for mental injury alone unless the applicant:
(a) ...
(c) was the non-consenting victim of a sexual offence ...".
Paragraph 16 of the 1996 Scheme provides:
"16. Where a case is not ruled out under paragraph 7(b) (injury sustained before 1 October 1979) but at the time when the injury was sustained, the victim and any assailant (whether or not that assailant actually inflicted the injury) were living in the same household as members of the same family, an award will be withheld unless:
(a) the assailant has been prosecuted in connection with the offence, except where a claims officer considers that there are practical, technical or other good reasons why a prosecution has not been brought; and
(b) in the case of violence between adults in the family, a claims officer is satisfied that the applicant and the assailant stopped living in the same household before the application was made and are unlikely to share the same household again. ... ".
[6] The petitioner avers that she was born on 11 February 1964. Between Spring 1968 and August 1971 (that is between the ages of four and seven and a half years) she was sexually abused by her father. As a consequence of this abuse she sustained physical damage to her womb and is unable to have children. She also sustained damage to her mental health, as a consequence of which she has suffered from depression, has tried to commit suicide three times and has received psychiatric treatment since the age of 16. On or about 9 October 1998, the petitioner reported the matter to the police. In or about June 2001 her father pled guilty to and was convicted of indecently assaulting her. On or about 12 October 1999, the petitioner made an application for criminal injuries compensation to the Criminal Injuries Compensation Authority. Since that application was made after 1 April 1996, it required to be considered under the 1996 Scheme. In view of the terms of paragraph 7(b) of that Scheme, the petitioner was notified by a letter dated 8 November 1999 that no award of compensation would be made. The petitioner requested a review of that determination. In terms of a letter dated 27 August 2001, the Authority advised the petitioner that, as a consequence of the terms of paragraph 7(b) of the 1996 Scheme, no award of compensation could be made to her. On or about 1 November 2001, the petitioner appealed against said determination to the first-named respondent, the Criminal Injuries Compensation Appeal Panel. On or about 15 April 2002 the first-named respondent issued a decision letter of that date in which it dismissed the appeal. The reason given for that decision was the effect of the terms of the 1996 Scheme.
[7] In these proceedings, the petitioner seeks declarator and reduction of paragraph 7(b) of the 1996 Scheme, as being contrary to her rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, referred to hereafter as "the Convention". She also seeks reduction of the decision of the first-named respondent, dated 15 April 2002, upon the same basis. The petition came before the Lord Ordinary at a first hearing on 6 January 2004. On 8 July 2004 he repelled pleas-in-law Nos.1, 2 and 3 for the petitioner, sustained pleas-in-law Nos.3, 4 and 5 for the respondents and refused the petition. Against that interlocutor the petitioner has now reclaimed to this court.
Submissions of junior counsel for the reclaimer
[8] Junior counsel commenced with an outline of the background to...
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