S.s. V. The Advocate General For Scotland As Representing The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Bonomy |
| Docket Number | P965/02 |
| Date | 05 December 2002 |
| Court | Court of Session |
| Published date | 09 December 2002 |
| OUTER HOUSE, COURT OF SESSION | |
| P965/02
| OPINION OF LORD BONOMY in the cause S. Petitioner; against The Advocate General for Scotland as representing the Secretary of State for the Home Department and the Criminal Injuries Compensation Appeal Panel Respondent: For Judicial Review of Paragraph 7(b) of the Criminal Injuries Compensation Scheme 1996 and of a decision to refuse a claim for compensation in reliance upon said Paragraph ________________ |
Petitioner: Sutherland; Drummond Miller, W.S.
Respondent: Lindsay; R. Henderson
5 December 2002
[1]The petitioner was sexually abused by her stepfather. He was convicted in respect of that abuse in 1997. The abuse occurred between 1967 and 1973 when the petitioner was between 7 and 13 years of age. The petitioner claimed criminal injuries compensation. The claim was submitted under the Criminal Injuries Compensation Scheme 1996. Paragraph 7(b) of that Scheme provided that no award of compensation was to be made where the criminal injuries were sustained before 1 October 1979 and the victim and assailant were living together as members of the same family. Her application for compensation was refused because of the terms of that paragraph. Her appeal against that decision to the Criminal Injuries Compensation Appeal Panel was refused on or about 12 January 1998 for the same reason.
[2]Following upon the decision of the Panel, the Human Rights Act 1998 was passed, and was then brought into force on 2 October 2000. With effect from that date it became unlawful for a public authority, which includes the Criminal Injuries Compensation Authority and the Criminal Injuries Compensation Appeal Panel, to act in a way which is incompatible with a Convention right (section 6(1)). Included among the Convention rights thus incorporated into the United Kingdom domestic law are the right to a fair hearing (Article 6 of the Convention) and the right not to be discriminated against in the exercise of other rights (Article 14). The petitioner seeks declarator that paragraph 7(b) of the Scheme is incompatible with these rights, and orders reducing paragraph 7(b) and the decision of the Panel made on 12 January 1998.
[3]On the face of it, the appropriate route to the petitioner's goal is a petition for judicial review of the decision of the Panel on the basis that the terms of paragraph 7(b) are incompatible with the Convention, and that the Panel acted unlawfully by giving effect to them. Such petition proceedings would ordinarily be in terms of Section 7(1) of the Human Rights Act 1998. The problem for the petitioner is that the challenge would relate to conduct which occurred prior to the Act coming into force. Section 22(4) of the Act provides that the Act does not have retrospective effect in relation to such challenges. Retrospective effect is confined to situations where proceedings are brought by or at the instigation of a public authority. That is clearly explained in R v Rezvi [2002] UKHL 1, [2002] 2 WLR 235, at paras. 24-26. The petitioner also recognised that it was not possible to challenge the decision to bring the Scheme into operation for the same reasons.
[4]Faced with that obstacle, Mr Sutherland, counsel for the petitioner, characterised her application as one seeking not a statutory remedy but a common law remedy. Where, as here, it was impossible to interpret subordinate legislation, such as paragraph 7(b) of the Scheme, in a way which was compatible with Convention rights, the Court could declare the paragraph incompatible with one or more Convention right, revoke the incompatible subordinate legislation and reduce the decision made thereunder which was unlawful. In following that course, the Court would simply be giving effect to section 8 of the Human Rights Act 1998 which provides that the Court may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. Once the decks had been cleared in this way, the petitioner could make a fresh application. (A question arose over the fact that this Scheme has since been superseded, but no point turns upon that at this stage.) The petition was, therefore, not presented in terms of Section 7(1)(a) of the Act, but was a pure common law application.
[5]Mr Sutherland sought support for the proposition that a declaration of incompatibility is a free-standing remedy, which is available independently of proceedings under section 7(1), by reference to the way in which section 4 of the Act has been applied. Section 4 is confined...
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