JT v First-Tier Tribunal
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leggatt,Lady Justice Sharp,Sir Terence Etherton MR |
| Judgment Date | 24 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1735 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2015/3918 |
| Date | 24 July 2018 |
[2018] EWCA Civ 1735
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER
JR/4047/2014 — [2015] UKUT 0478 (AAC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Terence Etherton Mr
Lady Justice Sharp DBE
and
Lord Justice Leggatt
Case No: C3/2015/3918
and
and
Fenella Morris QC and Nicola Kohn (instructed by Watson Woodhouse Solicitors) for the Appellant
Ben Collins QC and Robert Moretto (instructed by the Government Legal Department) for the Interested Party
Jason Coppel QC (instructed by the Equality and Human Rights Commission) for the Intervener
Hearing date: 14 June 2018
Judgment Approved
Introduction
Repeatedly throughout her childhood, the appellant in this case (“JT”) was sexually assaulted and raped by her stepfather in her family home. JT was born in 1963. The sexual abuse had started by the time she was five years old and continued until she was aged 17 (in 1979). Many years later JT's stepfather was prosecuted for these crimes. He was charged with eight offences: one of rape, three offences of indecent assault and three offences of indecency with a child. At a trial in November 2012 he was convicted on all counts and sentenced to 14 years' imprisonment.
There is a statutory scheme under which victims of crimes of violence, including sexual violence, who satisfy certain conditions are entitled to receive from the state an award of compensation for their injuries. In December 2012 JT applied for compensation under this scheme. Her application was rejected on the basis of a rule which has become known as the ‘same roof’ rule. This rule states that an award will not be made in respect of a criminal injury sustained before 1 October 1979 “if, at the time of the incident giving rise to that injury, the applicant and the assailant were living together as members of the same family.” All the offences committed against JT were committed before 1 October 1979 and, throughout the period when her stepfather raped and sexually assaulted her, they were living together as members of the same family. JT was told that, because of that fact, no award of compensation will be made to her.
By contrast with JT, a relative of hers who gave evidence at the criminal trial has received an award of compensation under the criminal injuries scheme of £1,000 in respect of two incidents of indecent assault by JT's stepfather. Both incidents occurred before 1 October 1979 but, unlike JT, the relative was not barred from receiving compensation by the ‘same roof’ rule because she was not living as a member of the same family as her assailant when the incidents occurred.
In this appeal JT contends that the decision to reject her application for an award of compensation because of the ‘same roof’ rule was incompatible with article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”), as incorporated into UK law by the Human Rights Act 1998, and was therefore unlawful. Article 14 requires the Convention rights to be secured “without discrimination”. The central argument made on JT's behalf is that, in arranging for payments of compensation to persons who sustained injuries from serious crimes of violence before 1 October 1979, it is arbitrary and contrary to article 14 to draw a distinction between those who were living as a member of the same family as their assailant and those who were not, and to allow only persons who were not living as a member of the assailant's family to claim compensation. JT's case is supported by the Equality and Human Rights Commission, which has intervened in the proceedings.
JT's case is opposed by the Criminal Injuries Compensation Authority (“CICA”). CICA contends that article 14 of the Convention is not applicable in this case because JT's complaint of discrimination does not fall within the ambit of any Convention right and/or because JT has not been treated differently on a ground prohibited by article 14. CICA also argues that there has anyway been no violation of article 14 as the difference in treatment of which JT complains is objectively justifiable.
Before addressing the issues in dispute, I will outline the history of the ‘same roof’ rule and put it in the wider context of the law governing compensation of criminal injuries.
The original scheme
The first scheme which provided compensation to victims of crime in Great Britain was introduced in 1964. It was not established by an Act of Parliament but under the Crown's prerogative powers. Payments made under the scheme were made ex gratia.
The 1964 scheme included these provisions:
“6. The Board will scrutinise with particular care all applications in respect of sexual offences or other offences arising out of a sexual relationship, in order to determine whether there was any responsibility, either because of provocation or otherwise, on the part of the victim …
7. Offences committed against a member of the offender's family living with him at the time will be excluded altogether.”
Explaining the new scheme to the House of Commons on 5 May 1964, the Home Secretary, Mr Henry Brooke, noted that the idea that the victims of crimes should be compensated by state action was comparatively recent. He emphasised the experimental nature of the proposed scheme and the fact that nobody could tell how many claims there would be. He explained the decision to exclude offences committed against a member of the offender's family living with him at the time of the offence in this way:
“We feel that the difficulties in clearly establishing the facts and ensuring that the compensation does not, in the end, benefit the offender are so great that these offences should be excluded, at least from an experimental scheme.”
In winding up the debate, the Joint Under-Secretary of State for the Home Department, Ms Mervyn Pike, gave this further elucidation:
“This part of the scheme was intended primarily to exclude an attack by a husband on a wife, or vice versa, where compensation might benefit the offender, and where the facts would be difficult to ascertain.”
No mention was made in the debate of the position of children who might be the victims of a sexual assault or other crimes committed by a family member living with them at the time.
The 1979 reform
In 1979 a new compensation scheme was introduced which made a substantial change to the ‘same roof’ rule. Para 8 of the 1979 scheme provided:
“Where the victim and any person responsible for the injuries which are the subject of the application (whether the person actually inflicted them or not) were living in the same household at the time of the injuries as members of the same family, compensation will be paid only where –
(a) the person responsible has been prosecuted in respect of the offence, except where the Board consider that there are practical, technical or other good reasons why a prosecution has not been brought; and
(b) the injury was one for which compensation … of not less than £500 would be awarded; and
(c) in the case of violence between adults in the family, the Board are satisfied that the person responsible and the applicant stopped living in the same household before the application was made and seem unlikely to live together again; and
(d) in the case of an application under this para by or on behalf of a minor, i.e. a person under 18 years of age, the Board are satisfied that it would not be against the minor's interests to make a full or reduced award.”
The 1979 scheme applied only to injuries incurred on or after 1 October 1979 (see para 25 of the scheme). Applications in respect of injuries incurred before that date continued to be dealt with under the previous scheme (ibid) which contained the original version of the ‘same roof’ rule.
The Compensation Convention
In 1983 the Council of Europe adopted the European Convention on the Compensation of Victims of Violent Crimes. The United Kingdom ratified this Convention on 7 February 1990 and it entered into force for the UK on 1 June 1990.
Article 2 of the Compensation Convention imposes an obligation on a contracting state, when compensation is not fully available from other sources, to contribute to compensate “those who have sustained serious bodily injury or impairment of health directly attributable to an intentional crime of violence.” The Explanatory Report makes it clear that the crimes covered by the Convention include rape. Certain very limited circumstances in which compensation may be reduced or refused – none of which is relevant for present purposes – are set out in article 8.
Awards of compensation for criminal injuries were put on a statutory basis in England and Wales (and Scotland) by the Criminal Injuries Compensation Act 1995. Section 1 of the 1995 Act provides that the Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries and that 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 person to whom awards may be made. Section 11 provides for Parliamentary control of the scheme by requiring a draft of the scheme to be approved by a resolution of each House of Parliament.
The first scheme made under the 1995 Act came into force on 1 April 1996 and applied to all applications received on or after that date. The 1996 scheme contained a rule (at para 7(b)) that no compensation would be paid where the injury was sustained before 1 October...
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