S. V. C.i.c.b. Etc+advocate General
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Date | 08 July 2004 |
| Court | Court of Session |
| Published date | 09 December 2004 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD McEWAN in petition of S. Petitioner; against C.I.C.B. ETC and ADVOCATE GENERAL Defenders: ________________ |
Petitioner: Sutherland; Drummond Miller (for McCann Fordyce, Dumbarton)
Defenders: McCreadie, Q.C.; H.F. Macdiarmid, Solicitor to Advocate General
8 July 2004
[1]Abuse of young children by adults is a terrible thing - any abuse. Some 35 years ago when she was but 4 years of age the petitioner was sexually abused by her father. It went on for over three years. Many years later it was reported and the father was convicted. The petitioner says she was physically and mentally harmed as a result of what was done to her.
[2]Now for many years there has existed a scheme to compensate people who have been the victim of crime. The scheme has undergone changes over the years and nowadays the petitioner would be included. The problem for her is that the events affecting her happened before October 1979. That excludes her under what has come to be called the "same roof" rule. In effect it excludes claims involving family members living in the same household.
[3]Her application was therefore turned down and to challenge that decision and the scheme this action is brought. She founds upon Human Rights. Let me now look at the pleadings. The Petition seeks by means of judicial review reduction of a decision on appeal, of the Criminal Injuries Compensation Appeal Panel (C.I.C.A.P. for short) dated 15 April 2002 refusing her claim for compensation (No.7/2 of process). She had applied for compensation by application dated 11 October 1999 (No.7/8 of process), that application alleged sexual abuse of the petitioner by her father between 1968 and 1971 when she was between 4 and 7 years of age. In the application the injuries (Box 7.1) are said to be of a psychiatric nature. The application was to the Criminal Injuries Compensation Authority (C.I.C.A.). They refused her application, as they were bound to do in terms of the existing scheme, because she lived in the same household as her father. The refusal letter is No.6/2 of process and is dated 8 November 1999. She was entitled to ask for a review and did so. The review was refused by letter from C.I.C.A. dated 27 August 2001 giving identical reasons. (The letter is No.6/3 and also No.7/1 of process). There was then the appeal decision which I have already noted.
[4]As well as seeking reduction of the decision the petitioner also seeks declarator that the relevant paragraph of the Criminal Injuries Compensation Scheme 1996 is incompatible with her Human Rights. She founds on Article 6 and Article 1 of Protocol No.1 both taken with Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). She also seeks reduction of the relevant paragraph 7(b). That paragraph provides as follows:
"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...".
[5]It should also be noted that in the body of the petition (Article 5) the petitioner alleges that as well as mental health damage she sustained physical damage to her womb and is unable to have children. There is no mention of this in the application. I was told, and it was not disputed, that almost 30 years later the father at the age of 62 was convicted and sent to prison for three years. The petitioner has had nothing to do with him for many years.
[6]Thereafter in Articles 4 to 9 the Petition sets forth why the remedies should be granted. The Answers (No.11 of process) admit the relevant facts, the letters, decisions and other documents and remedies sought. They end with a series of propositions to counter the remedies being available. Some of the authorities mentioned were not cited to me.
[7]In the course of the argument I was referred to a large number of authorities almost all in some detail which I now cite for convenience, viz. Abdulaziz &c v U.K. (1985) 7 E.H.R.R. 471; August v U.K. 21 January 2003; Botta v Italy (1998) 26 E.H.R.R. 241; C v Secretary of State [2003] E.W.H.C. 1295; Darby v Sweden (1990) 13 E.H.R.R. 774; DS v Netherlands (application 17175/90); Gaygusuz v Austria (1997) 23 E.H.R.R. 364; Gratzinger v Czech Republic (2002) 35 E.H.R.R. CD 202; Gustafson v Sweden (1998) 25 E.H.R.R. 623; (Prince) Hans-Adam II of Liechtenstein v Germany E.C.H.R. 12 July 2001; James v U.K. (1986) 8 E.H.R.R. 123; Jantner v Slovakia E.C.H.R. 9 July 2003; Kjeldson v Denmark E.C.H.R. 5 December 1976; Larkos v Cyprus E.C.H.R. 18 February 1999; Masson v Netherlands (1995) 22 E.H.R.R. 491; Matthews v Ministry of Defence [2003] 1 All E.R. 689; McIntyre v U.K. 21 October 1998 (Commission); Osman v U.K. (1998) 29 E.H.R.R. 245; Pearson v U.K. 11 May 1999 E.C.H.R.; Poirrez v France 30 September 2003 E.C.H.R.; R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 W.L.R. 1389; R (Carson) v Secretary of State for Work and Pensions [2003] 3 All E.R. 577; R v C.I.C.B. ex parte P and G [1995] 1 W.L.R. 845; R v Lambert [2002] 2 A.C. 545; R v Ministry of Agriculture &c ex parte First City Trading [1997] 1 C.M.L.R. 205; Rasmussen v Denmark (1984) 7 E.H.R.R. 371; Southwark London Borough Council v St Brice [2002] 1 W.L.R. 1537; Wandsworth London Borough Council v Michalak [2002] E.W.C.A. 271; Wessels-Bergervoet v Netherlands 4 June 2002 E.C.H.R.; Wilson v First County Trust Ltd [2003] 3 W.L.R. 568; Woods v Secretary of State for Scotland 1991 S.L.T. 197; X v Netherlands 18 December 1973 (The Commission) and Z v U.K. (2002) 34 E.H.R.R. 97.
[8]Some of these cases are not in recognised sets of reports. In addition there are some other cases mentioned in the Petition itself which were not fully canvassed. In view of the importance of the case I shall have to examine almost all these authorities in some detail later on.
[9]Let me now examine the history of the compensation for criminal injuries. The original scheme involved ex gratia payments made under prerogative powers. It was announced in Parliament on 24 June and came into operation on 1 August 1964. It set up the Criminal Injuries Compensation Board. The basis of compensation was common law damages. Paragraph 7 provided as follows: "Offences committed against a member of the offender's family living with him at the time will be excluded altogether...". Motoring offences were in general excluded. The original scheme is No.7/3 of process and, as can be seen, is not a complete document. The scheme was revised in 1969 but without changes for present purposes.
[10]In 1978 the Scheme was reviewed and the report of the Working Party conducting that is No.7/11 of process. Chapter 7 considered the position of victims of family violence. It discussed the problems of collusion and the risks of benefit to the offender as well as the problem of evidence. It was in favour of removing the prohibition and recognised that there would be cost implications. These were set out in Appendix 2 (between pages 88 to 90). Plainly it was of the opinion that any problem could be overcome by suitable safeguards and the experience of the Board. The removal was to be experimental (page 39).
[11]The result of this was a revised scheme in 1979 (No.7/4 of process) and the "same roof" rule was removed but only in relation to incidents happening after 1 October 1979. The problems of family claims were dealt with in paragraph 8; and injuries before that date were to be dealt with under the 1969 scheme.
[12]Then in 1990 the 1979 Scheme was superseded (see No.7/5 of process). This time what was important was the date of application which had to be on or after 1 February 1990. Once again the payments were to be ex gratia. The "same roof" rule was referred to in paragraph 8; however injuries before 1 October 1979 continued to be dealt with under the 1969 Scheme (para.28). Accordingly the old Scheme was kept alive again for the potential old claims. Thus no retrospective benefit was to be conferred.
[13]In 1995 a brand new Statutory scheme was introduced. The Criminal Injuries Compensation Act 1995 brought in a new scheme where there was to be a tariff of fixed payments for particular injuries. The Statute gave power to make a new scheme (No.7/6 of process). (Also 6/4 with the associated Guide itself also 6/4). It applied to applications received on or after 1 April 1996 no matter when the offence happened; however the "same roof" rule for injuries before 1 October 1979 was preserved (para.7(b)). An updated scheme in 2001 (No.7/7 of process) preserved the position (see para.7). These last two schemes have an extensive tariff of values specified for different injuries. In the notes are multiplier tables and other details.
[14]Now these are the schemes but that is not the whole story. I have already noted the 1978 Working Party report which showed that even then costs had to be controlled and future claims were allowed under the "same roof" rule. No doubt that was productive of unfairness, yet policy will always involve difficult choices.
[15]In 1999 the whole matter was looked at again and the Consultation Paper is No.7/10 of process. What is important about this is that it and its 1978 predecessor are the evidence (my emphasis) on the basis of which I will have to assess whether in the context of the State's legitimate aim in this field to have a fair scheme, the decisions amount to a proportionate response. The document is headed "Possible Changes". Plainly (page 3) public spending is a consideration and the escalating costs written in paragraph 9 are a matter of concern. From 1965 the cost had gone up from half a million pounds to two hundred million.
[16]It is recognised at paragraphs 60 and 61 that available funds are limited and hard choices have to be made. Paragraph 64 has a list of suggested...
To continue reading
Request your trial