Petition Of Ma For Judicial Review Of The Withholding Of Criminal Injuries Compensation To The Petitioner On The Basis That The Injuries Suffered By Her Were Inflicted By A Family Member Of The Same Household Before 1 October 1979
| Jurisdiction | Scotland |
| Judge | Lord Burns |
| Neutral Citation | [2016] CSOH 115 |
| Year | 2016 |
| Published date | 29 July 2016 |
| Date | 29 July 2016 |
| Court | Court of Session |
| Docket Number | P243/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 115
P243/15
OPINION OF LORD BURNS
In the petition
MA
Petitioner;
for
Judicial Review of the withholding of criminal injuries compensation to the petitioner on the basis that the injuries suffered by her were inflicted by a family member of the same household before 1 October 1979
Act: Mitchell QC, et Irvine advocate; Drummond Miller LLP
Alt:: Webster, advocate; Office of the Advocate General
29 July 2016
[1] On 7 November 2012 the petitioner submitted a claim for criminal injuries compensation in respect of assaults upon her in 1968 and 1973 by her mother of which her mother had been convicted. The petitioner was 3 months old at the date of the first assault and 5 years old at the date of the second.
[2] Because of the date of her application her claim fell to be considered under the Criminal Injuries Compensation Scheme 2008 (“the 2008 Scheme”). Paragraph 7 thereof provides that 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 same time as members of the same family.”
[3] By letter dated 10 March 2014 the Criminal Injuries Compensation Authority refused the petitioner’s claim because of the terms of that paragraph explaining that the authority was precluded from making any award of compensation and had no discretion in the matter.
[4] The petitioner raised this petition in which she seeks a number of remedies set out in paragraph 4. Those are, first, declarator that the claims officer who decided her claim acted unlawfully in terms of the Human Rights Act 1998, section 6(1) by withholding compensation on the basis of paragraph 7(b). Secondly, she seeks reduction of that decision. Thirdly, she seeks declarator that the Secretary of State acted unlawfully by including paragraph 7(b) within the 2008 Scheme. Fourthly, she seeks reduction of paragraph 7(b) and the expenses of the petition.
[5] The exclusion of cases in which criminal injury was sustained in circumstances where the victim and assailant were living together at the time as members of the same family has existed since the first Criminal Injuries Compensation Scheme in 1964. That was a non‑statutory scheme providing for the making of ex gratia payments to certain victims of crime.
[6] In 1995 the Criminal Injuries Compensation Act 1995 was enacted and since that date all schemes have been made pursuant to that Act. A draft of the scheme requires to be laid before Parliament and the Secretary of State cannot make the scheme unless the draft is approved by resolution of each house. The first statutory scheme was made in 1996 and a number have been made since including that of 2008.
[7] In the report of the working party on compensation for victims of crimes of violence dated 20 December 1960 the authors reported to the Secretary of State for the Home Department, having been asked to examine the practical problems involved in a scheme for the compensation of the victims of crimes of violence. At paragraph 38 the issue of a special relationship between the offender and the victim was addressed. The report stated:
“there may be many ‘domestic’ crimes including assaults on wives or members of her family or household, for which the payment of compensation might be thought inappropriate.”
It was doubted whether it would be practicable to establish a boundary in such cases which would not give rise to anomalies and difficulties. However, the White Paper subsequently presented to Parliament by the Secretary of State for the Home Department and the Secretary of State for Scotland in March 1964 set out the arrangements which the Government proposed to make for compensating victims of crimes of violence. It was thought best to start with a flexible scheme which could be altered in the light of experience. At paragraph 17 it is stated:
“offences committed against a member of the offender’s household living with him at the time will be excluded altogether, in view of the difficulty in establishing the facts and ensuring that the compensation does not benefit the offender.”
That rationale for the inclusion of what became known as the “same roof rule” persisted until, in its eighth report dated 23 September 1972, the Board recommended that the same roof rule should be reconsidered when the scheme is reviewed. The two bases for it are criticised at paragraph 9 of that report. It was pointed out that when there has been a criminal trial the facts are often established beyond doubt and where no criminal proceedings have taken place the Board would scrutinise the application with great care and would bear in mind the possibility of collusion. In relation to the possibility that the offender might benefit from the award to the victim it was pointed out that no real risk would arise when the offender has been sentenced to a long period of imprisonment, where parties have been divorced, or where it is plain they will never live together as man and wife. In other cases power given under the then existing scheme could be utilised to make special arrangements for the administration of the award so as to ensure the offender did not benefit from it. It appeared to the Board at that time the exclusion of children who were assaulted by their parents or by a man who is living with her mother appeared to them to be unjustified. They referred to the only application made by a child injured by a member of the family. That had been refused because of the same roof rule but the Board could not tell how many may have failed to apply for the reason that their claims are excluded by that rule.
[8] That recommendation was given effect to after a review of the scheme by a report of an interdepartmental working party in 1978. The scheme’s rules were changed and for offences committed on or after 1 October 1979 an award could be made where the assailant and applicant lived together so long as the assailant had been prosecuted in connection with the offence or a claims officer considered that there are good reasons why a prosecution had not been brought however, for offences committed before 1 October 1979 the original rules were retained.
[9] Accordingly, when the petitioner came to submit her application the same roof rule applied to her because the offences had been committed before 1 October 1979.
The arguments of the petitioner
[10] Mr Mitchell argued that paragraph 7(b) of the 2008 Scheme and the decision taken in terms of it were unlawful, being in breach of article 14 and article 1 of the First Protocol (A1P1) to the European Convention of Human Rights (the Convention) and section 6 of the Human Rights Act 1998. Paragraph 7(b) discriminated on the basis of the petitioner’s status contrary to article 14.
[11] He recognised that article 14 had no independent existence and that it was necessary for him to demonstrate that the decision to refuse compensation came within the scope or ambit of A1P1. To do that he had to show that the claim to compensation in this case constituted a possession within the meaning of A1P1.
[12] If he was able to demonstrate that the decision came within the ambit of A1P1 and that the discrimination was based on a status within the meaning of article 14, he further argued that it was for the state to justify any such discrimination and that the respondent had failed to do so in this case.
[13] Article 14 of the Convention provides that:
“The enjoyment of the rights and freedom set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, politics or other opinion, national or social origin, association with a national minority, property, birth or other status”.
Mr Mitchell recognised that this was not a general prohibition on discrimination but provided only that there should be no discrimination in the enjoyment of other substantive convention rights. Accordingly, the petitioner had to bring herself within the ambit of one or more of those substantive provisions and, in this case, he relied on A1P1 which provides inter alia:
“(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one should be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
[14] At the centre of Mr Mitchell’s argument on this branch of his submissions was that a claim for criminal injuries compensation constituted a possession within the meaning of A1P1. This could be because there is an ultimate entitlement to it under national law or because there is a legitimate expectation of receiving it ultimately. Further, if the reason why the claimant had not been awarded it or cannot receive it under national law is itself a discriminatory ground under article 14 that would mean that the petitioner’s complaint fell within the ambit of A1P1. He submitted that the position of the respondent in this case failed to recognise the last aspect of his formulation. He referred to the Practical Guide on Admissibility Criteria 2015 60 EHRR SE 8 issued by the European Court of Human Rights. At paragraph 359 it is stated:
“The concept of possessions may be extended to a particular benefit of which the persons concerned have been deprived due to a discriminatory condition of entitlement.”
[15] There reference is made to the case of Stec and others v UK 2005 41 EHRR SE 18.
[16] Mr Mitchell argued that this case was significant since it provided the authority for his last proposition. He referred to paragraph 54 of Stec in particular. In this case, but for paragraph 7(b), the petitioner would have a claim for a pecuniary right by way of criminal injuries compensation. Accordingly, although the state did not require to provide any form of benefit such as criminal...
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