The Queen (on the Application of Leon McNiece) v Criminal Injuries Compensation Authority and Another
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Wilkie |
| Judgment Date | 12 January 2017 |
| Neutral Citation | [2017] EWHC 2 (Admin) |
| Docket Number | Case No: CO/3839/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 January 2017 |
In the Matter of an Application for Judicial Review
The Queen (on the Application of
[2017] EWHC 2 (Admin)
Mr Justice Wilkie
Case No: CO/3839/2015
CO/5189/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tankel (instructed by Slater & Gordon) for McNiece (Claimant) and
Ms Luh (instructed by Leigh Day & Co) for Subatkis (Claimant)
Mr Collins QC and Mr Moretto (instructed by The Government Legal Department) for the Defendants
Hearing dates: 13 th and 14 th December 2016
Approved Judgment
Introduction
These are joined claims for Judicial Review pursuant to an Order dated 28 th November 2016.
The claims raise issues concerning the lawfulness of aspects of the Criminal Injuries Compensation Scheme ("the Scheme") in its 2012 iteration, and, in particular, the question whether the Scheme, in so far as it concerns applicants for compensation who have unspent criminal convictions which resulted in a custodial sentence or community order, is unlawful because it is in breach of the European Convention on Human Rights.
The two claims have at their core the same two issues, but they also raise different issues with which the Court has to deal.
In the McNiece case, the grounds for the claim can be stated briefly. It is contended that the provisions of the Scheme impose what is called a "blanket ban" on awards being made under the Scheme to those with an unspent conviction which led to a custodial or a community sentence. The grounds upon which, it is said, the Scheme, by those provisions, is unlawful are
a) That it constitutes a disproportionate interference in the Claimant's rights under Article 1 of Protocol 1 (A1P1) to the European Convention on Human Rights.
b) It is unjustifiably discriminatory contrary to A1P1 read together with Article 14 of the Convention.
c) It is ultra vires the statutory powers pursuant to which the Scheme was made, and
d) It is irrational.
The grounds in the case of Edgaras Subatkis and Edvinas Subatkis are identical to the first two grounds relied on in the case of McNiece but, in addition, it is contended that the "blanket ban" on awards for those with an unspent conviction which resulted in a custodial or community sentence, is in breach of
i) Article 17 of Directive 2011/36/EUof the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (the "Anti-Trafficking Directive"), and
ii) Article 1 of Protocol 1 read together with Article 4 of the European Convention on Human Rights
The Facts
The facts are relatively simple, and, to a large extent, uncontested, and I set them out briefly.
Leon McNiece
i) The Claimant was assaulted on the 1 st December 2013 by a taxi driver. He was hit over the head with a golf club, knocked unconscious, his skull and cheekbone fractured, he suffered a large temporal bleed on his brain requiring an operation. He now suffers from loss of memory and concentration, nightmares and headaches. He gave up his college course. His mother says his personality has changed since the incident.
ii) On the 16 th February 2014, the Claimant applied to the Criminal Injuries Compensation Authority (CICA) for compensation in respect of that injury.
iii) On the day before that application the Claimant was involved in a domestic altercation with the partner of his friend's mother who he pushed back onto a sofa. He was subsequently convicted, on the 21 st November 2014, of assault and sentenced to a 12-month community order.
iv) On 13 th May 2015, a claims officer of CICA concluded that it could not make an award because the Claimant had an unspent conviction which resulted in a community order.
v) The view taken by the Claimant was that steps available to him under the Scheme, to seek a review by an officer, or to appeal to the First-Tier Tribunal, would inevitably fail as the rules do not allow for any leeway in a case such as his.
vi) The Claimant accepts that the decision of the officer was in accordance with the terms of the Scheme but contends that the terms of the Scheme are unlawful.
Subatkis
The Claimants are twin brothers, nationals of Lithuania, born on the 7 th December 1986, now aged 30. After a very difficult childhood, they were placed in care.
In 2013 they were trafficked from Lithuania to the United Kingdom and subjected to labour exploitation and abuse. Their experiences between the dates of the 1 st June and the 30 th October 2013 constituted criminal offences for which, on the 22 nd January 2016, the traffickers responsible were convicted receiving custodial sentences of 3 1/2 years. Slavery and trafficking prevention orders were made under the Modern Slavery Act 2015.
The Claimants applied to the CICA for compensation under the Scheme on the 16 th June 2016.
Edgaras Subatkis had been convicted of burglary on the 6 th June 2010 and sentenced to 3 years imprisonment. Edvinas Subatkis was convicted of theft on the 11 th December 2011 and was sentenced to 11 months imprisonment.
On the 7 th July 2016, the CICA wrote to each of the Claimants refusing to make an award of compensation for their criminal injuries in the following terms
"I am sorry to tell you that I have decided not to make any award because, under paragraph 26 of the Scheme, Annex D sets out the circumstances in which an award under this Scheme will be withheld or reduced because the applicant, to whom an award would otherwise be made, has unspent convictions."
As each Claimant had an unspent conviction which resulted in a custodial sentence, the officer was unable to make an award of compensation under paragraph 26 of the Scheme.
Under the Rehabilitation of Offenders Act 1974, as amended, in Edgaras' case, the sentence does not become spent until the 6 th June 2020. In Edvinas' case, the conviction became spent on the 11 th November 2016.
Neither Claimant launched a review or an appeal under the CICA Scheme on the basis that as the Scheme had been properly applied any such application for a review or appeal would inevitably fail.
Timeliness
In the case of McNiece, the decision was the 15 th May 2015, the claim was issued on the 13 th August 2015 within the 3 months. The Defendant did not accept that the claim form was filed promptly but now does not take the point.
In the case of Subatkis, the decisions challenged were made on the 7 th July 2016. The claim was issued on the 7 th October 2016 within 3 months. The Defendant did not accept the claim was filed promptly but now does not take a point on delay.
The Scheme
The first Criminal Injuries Compensation Scheme was introduced in 1964. It was non-statutory and provided for ex gratia payments.
The Criminal Injuries Compensation Act 1995 (the Act) was enacted and schemes from that time have been statutory, pursuant to the Act.
Section 1 of the Act provides:
"(1) 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.
(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 person to whom awards may be made.
(3) The Scheme shall be known as The Criminal Injuries Compensation Scheme ("the Scheme").
(4) In this Act –
"Award" means an award of compensation made in accordance with the provisions of the Scheme; …
"Compensation" means compensation payable under an award."
Section 11 of the Act provides
"(1) Before making the Scheme, the Secretary of State shall lay a draft of it before Parliament.
(2) The Secretary of State shall not make the Scheme unless the draft has been approved by a resolution of each House."
Thus, the Scheme is a creature of statute and is in the form of subordinate legislation within Section 21(1) of the Interpretation Act 1978.
Section 2(1) of the 1995 Act provides
"The amount of compensation payable under an award shall be determined in accordance with the provisions of the Scheme."
Section 3 of the 1995 Act is entitled "Claims and Awards". It provides
(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 specific circumstances …
e) Requiring claims under the Scheme to be made within such periods as may be specified by the Scheme …"
Section 3(4) of the Act provides
"The Scheme shall include provision for claims for compensation to be determined and awards and payments of compensation to be made –
…
b. Otherwise by persons (Claims Officers) appointed for the purpose by the Secretary of State."
The Provisions of the Scheme
Paragraphs 4 to 21 all deal with various aspects of eligibility. Paragraphs 4 to 8 deal with injuries for which an award may be made. Paragraphs 10 to 16 deal with residence etc. Paragraphs 17 to 21 deal with other provisions. Paragraph 4 provides
"A person may be eligible for an award under this Scheme if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence committed in a relevant place. The meaning of "crime of violence" is explained in Annex B …"
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