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Cite as: [2004] ScotCS 172
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S v. CICB ETC & Anor [2004] ScotCS 172 (08 July 2004)
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD McEWAN in petition of S. Petitioner; against C.I.C.B. ETC and ADVOCATE GENERAL Defenders:
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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...".
[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 EHRR 471; August v U.K. 21 January 2003; Botta v Italy (1998) 26 EHRR 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 EHRR 364; Gratzinger v Czech Republic (2002) 35 E.H.R.R. CD 202; Gustafson v Sweden (1998) 25 EHRR 623; (Prince) Hans-Adam II of Liechtenstein v Germany E.C.H.R. 12 July 2001; James v U.K. (1986) 8 EHRR 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 ER 689; McIntyre v U.K. 21 October 1998 (Commission); Osman v U.K. (1998) 29 EHRR 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 WLR 1389; R (Carson) v Secretary of State for Work and Pensions [2003] 3 All ER 577; R v C.I.C.B. ex parte P and G [1995] 1 WLR 845; R v Lambert [2002] 2 AC 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 WLR 1537; Thomson v U.K. (1986) 8 EHRR 123; 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 WLR 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 EHRR 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 changes and contains these words "..indication of the possible cost... (serves) to emphasise just how expensive seemingly innocuous suggestions can be...". At subparagraph F raising awards for victims of sexual crime could cost up to thirty million pounds a year.
[17] Paragraph 47 shows that all the extra money which would have to be found would be "...at the expense of other government programmes...". Beyond the words of "hard choices" paragraph 61 recognises that any money increase in eligibility, categories or tariffs on the one hand would be at the expense of exclusions and reductions of others. At the end is a single sheet Annex H which shows that to abolish the "same roof" 1979 rule would cost from fifteen to thirty million pounds a year.
[18] The real point of both of these reports, separated by twenty years, is that the continuation of the rule which excludes the petitioner was not done as a statutory formality without thought or explanation but rather after careful analysis, projected costing, consultation and reflection.
[19] Mr Sutherland during the first day of his submissions presented argument against both respondents to which I will return shortly. However, on the second day he moved to amend at the bar. It is not necessary to go into this in detail or to examine the reasons for it. I allowed the amendment which has the effect of removing the Compensation Authority from the proceedings, leaving only the Appeal Panel as compearing respondents.
[20] Let me now return to what was argued. Counsel said that he sought only declaratory orders not those of incompatibility. He referred me to the facts narrated and to the application and refusal; (Nos. 7/1 and 2 and 7/8 and 9) and then to the history of the C.I.C.B. The 1964 Scheme provided for ex gratia payments under prerogative powers (No. 7/3). He noted what was excluded by para 7. The revisals in 1969 made no charges. Then in 1978 there was a further review. He referred me to the reasons given in Chapter 7 of the need to have changes.
[21] Now in the present case the facts showed there was a conviction and so any reasons, as seen in 1964 and 1978, to exclude the claims were not valid. The present case resulted in imprisonment, and with no contact there was no prospect of the perpetrator benefiting.
[22] The 1978 review brought in a new scheme in 1979 for incidents after 1 October 1979, although it was still an ex gratia matter. (See 7/4). This scheme was superseded in 1990 for applications received on or after 1 February 1990 (See 7/5). Thus the date of receipt was determinative. However, the pre 1979 scheme was kept alive.
[23] In 1995 the Act was passed (Criminal Injuries Compensation Act, 1995) No. 7/6. The new statutory scheme introduced a tariff, unlike the old one which was akin to damages at common law. Now there were to be fixed payments for particular injuries. The determinative date for receipt of applications was 1 April 1996 and this scheme was retrospective to when the crime was committed. However, paragraph 7 continued the existing prescription. The latest scheme in 2001 (No. 7/7) was to the same effect. Human Rights became effective in October 2000.
[24] The claim open to the petitioner was an admitted civil right (Gustafson v Sweden). In the present case, although having a civil right the petitioner is excluded and discriminated against in an unlawful manner under Article 14, because of the status she had viz as a member of the same family as the offender. August v UK was a case where the Court was in error about primary fact.
[25] The right to compensation under the 1996 scheme was excluded and resulted in different treatment for victims of crimes living in the same households as the perpetrators compared to these similar victims not in the same household and before 1 October 1979. This "status" distinction breached Article 14 and there could be no objective reasonable justification for such different treatment.
[26] X v Netherland was referred to at various passages. The importance of this case was that to found a breach of Article 14 there was no need to find a breach of a different provision provided it was within the broad scope.
[27] Rasmussen v Denmark was to the same effect as was Abdulaziz v UK where again "linkage" was seen. I was then referred to Gaygusuz v Austria and Wessels-Bergervoet v Netherlands. In the present case changes were made more than once, always excluding the petitioner and in the light of experience, that exclusion was not well founded. Four tests were set out in Wandsworth LBC v Michalak. Posing these in the present case showed a prima facie breach of Article 14 without any express breach of Article 6. The scheme makes a difference between the petitioner and comparators who are in analogous situations. There could be no legitimate aim for this difference or objective or reasonable justification. There had to be proportionality between the differential here and the aim sought to be achieved.
[28] Referring to the Answers paragraph 9, counsel said that unfairness to some was not reasonable or objective. It fell within what was said to be irrational in Woods v Secretary of State for Scotland. Whether the determinative date referred to incidents or application; or where different and lower levels of payment were involved as later schemes came in, was not the point. These were all widely discussed at the time. That, however, was quite different to an outright refusal which was always the continuing result for this petitioner whatever the scheme. Such was not acceptable. She simply sought something comparable to the changing approaches made already. Continuing his analysis of the answers, Mr Sutherland next looked to what he called the financial or policy and resources implications. He looked in some detail at the 1999 Consultation Paper No. 4/10 of process. Page 9 only dealt with levels of award, not the October 1979 rule. In any case by then the tariff was in place. Even in paragraph 64 there was no mention of the problem of the present case in the many sub-paragraphs. It only found mention in the table in Annex H with a figure of £30m which was not discussed. Simply because the funds are public funds does not make what has happened proportionate. It would be bound to cost money; but the real issue is whether the explanation given for not removing the problem is proportionate to the aim. If the aim is just to save money that is not an appropriate reason when it involves discrimination. Even in 1979 when the "same roof" rule was abolished, that was said to be experimental. In principle someone like the petitioner should be compensated, and since the whole matter was now on a tariff there was more control over public funds.
[29] What was so difficult about including old cases, and this one in particular, asked Counsel? The 1978 Review (No. 7/11) looked at this. I was referred to pages 31/7 and the issues of collusion and establishing the facts. Neither of these could be said to be a problem in general and in the present case there was no issue on the facts as there was a conviction and an admission. He referred me to R v C.I.C.B. ex parte P & G, which was a similar kind of case. Passages on pages 857/8, 860/1 and 863 were looked at. The test is not perversity but what is proportionate. The 1978 Review was looked at. The test in that case was not the proper one. The three real questions were, was there any objective justification; was there a legitimate aim and finally, was what was done proportionate to that aim. These tests individually or together do not justify refusing the petitioner. Where "irrationality" was the issue the onus was on the asserter to show it was perverse. However, by contrast, with the Convention it was for the Secretary of State to show proportionality between the aim and the means. The orders sought should be granted.
[30] When Mr McCreadie came to reply he was by then only acting for the Criminal Injuries Compensation Appeal Panel and the Secretary of State for Home Affairs.
[31] He first pointed up certain differences between the Form T514 claim for compensation dated 13 October 1999 (pages 3 and 6), No. 7/8 of Process; and article 5 of the Petition. The description of her injuries was not the same, and in that situation it could not be said with any confidence that she was "bound to receive an award". He referred me to the 1996 Scheme Rule 7(B) (No. 7/6 of Process). The test was "directly attributable", but here there was an issue of what she suffered.
[32] Moving on he took me next to the Petition Article 3(ii), That sought reduction of paragraph 7(b) of the 1996 Scheme. That could not be done on the basis of incompatibility. The Human Rights Act 1998 was not retrospective and at the time the CICS scheme was made in 1995 it was subordinate legislation and intra vires. He referred me to the Act at Section 3 and 21. The Act came into force on 2 October 2000. It might allow such a challenge to the 2001 Scheme but that was not in issue. He referred me to R v Lambert and Wilson v First County Trust.
[33] Counsel further referred me on this point to Plowden and Kerrigan: Advocacy and Human Rights page 197 and an Article in 2000 Public Law, page 358 which supported that view. Enforcement, however, could be prevented by declarator and reduction of the letter, as here. Accordingly in limine the second plea should be repelled.
[34] The next question was to examine whether there had been Article 14 discrimination. That had to be looked at in the context of Article 6 and Article 1 of Protocol No. 1.
[35] Article 6 concerned the right to a fair trial. In general an entitlement to Criminal Injuries Compensation was a civil right for the purposes of Article 6. It is a scheme of Statutory entitlement in 1996, not ex gratia payments as were the earlier schemes. Two key cases could be looked at. In Masson v Netherlands a discretionary right was not a right in law. The system there did not give a civil right. By contrast there were clear regulatory terms in Sweden as could be seen in Gustafson. August v UK was decided per incuriam and without reference to the preceding two cases. It should not be followed.
[36] The petitioner in this case, because of paragraph 7 of the Scheme has no civil right at all under Article 6. It would only apply to a determination of her (counsel's emphasis) civil rights. If there are none then Article 6 does not apply. The European court could not "slip in" and create any right. Vide Thomas v UK. Matthews v Ministry of Defence was an example of Crown immunity which created a substantive bar just as has happened here. The domestic law had to be taken as found. I was taken to various passages in the speeches of Lord Bingham (para. 3), Lord Hoffman (paras. 25 and 28) Lord Hope (paras. 49, 51 and 53) Lord Millett (para. 77) and Lord Walker (para. 142). It was plain in this case that Article 6 did not apply at all.
[37] The petitioner could not say she was denied access to the Court, (Clayton & Tomlinson: Human Rights page 636). Counsel referred further to the problem created by the case of Osman v UK and the criticism of it found in Matthews at paras. 42/3 and Z v UK.
[38] Article 1 of Protocol No. 1 does protect property rights but this does not apply to the Petitioner either. She has no existing right to compensation nor any legitimate expectation. However, what the petitioner was saying in argument was that she did not need a civil right if the Scheme was one, and one protected by Article 1. That would allow her access to Article 14 and to argue discrimination. However, to argue in this way was to misunderstand the substantive Convention right and Article 14. Before there could be any operation of Article 14 there must first be a Convention right.
[39] Counsel then looked at a number of authorities. Rasmussen v Denmark was, he said, a classic case. It concerned a paternity action by a father which was time barred. Unless a Convention right applied to an individual there was no issue to consider. Unless the individual could exercise a "right" then Article 14 did not apply. He referred again to Clayton at page 1236. Botta v Italy was next. That was a good example of Article 8 not applying at all therefore Article 14 was not reached. Apart from one old case, there were no contra-indications in the jurisprudence and so the court should follow what was clear. (Alconbury Ltd) . Provided a relevant Article applied it was not even necessary to have a breach of it to bring in Article 14.
[40] Counsel then went on to criticise the case of X v Netherlands a decision only of the Commission, which decided that certain pension benefits accruing to a widow did not amount to possession for the purposes of Article 1. This, he said, was inconsistent with later authorities. By contrast was Rasmussen where paternity clearly was a civil right applicable to him and whether or not there was a breach of Article 6 or 8 the court could go to Article 14. Abdulaziz v UK was a good example of Article 8 being applicable though not violated. That allowed the Court, nevertheless, to go onto and consider Article 14. Prince Hans-Adam II of Leichtenstein v Germany was another example of what did not constitute "possessions" in relation to moveables. Article 1 did not apply. Similar results were to be seen in relation to heritable property in Gratzinger v Czech Republic, and Jantner v Slovakia. In these cases it was pointed out that the petitioner had no right under Article 1 and no "legitimate expectation" of one unless there was a change in the law. That was exactly the same situation as in the present petition as long as the "same roof" rule remained and without any adverse judicial decision. To the same effect was Darby v Sweden.
[41] Wessels-Bergervoet v Netherlands was an important case. There a contributory pension was held to be a possession and as Article 1 applied the Court could go to Article 14. This case showed up the flaws in the reasoning in X v Netherlands mentioned earlier. Gaygusuz v Austria was again a pension case which was held to involve pecuniary rights and bring in Article 1; as was Poirrez v France where a disabled adults allowance was held to be a right personal to the applicant.
[42] Carson and another v Secretary of State for Work & Pensions was looked at in some detail. The case related to benefits paid some of which were contributory and some not. I shall look at the case again in more detail but at present it is only necessary to note that an attempt was made to reconcile and seek a "ratio" in some of the European cases. It was also argued that if a non contributory benefit is not enough to be a possession then there was a clear analogy between Income Support and the present facts. Even if a right to Criminal Injuries compensation was a possession (as it was said to be in C v Secretary of State for the Home Office) the present applicant had no actual right and so there was no room for Article 14 application. Southwark L.B.C. v St Brice showed the importance of the words "other status".
[43] The European cases allowed for different treatment and that could be seen in areas as diverse as sex education in primary schools (Kjeldsen v Denmark and cases between landlord and tenant (James v UK). However in all these cases it was important to look for what was the legitimate aim and whether the solution was proportionate
[44] The European Court would usually identify where the margin of appreciation lay and what reasons existed for any difference in treatment resulting in apparent discrimination. Where the subject matter involved race, sex or religion, weighty reasons would be needed to avoid a finding of discrimination. The present facts could not be said to be of such a serious nature. Different treatment can be justified on public interest grounds (e.g. Larkos v Cyprus, the civil service "tied house" and James, long leasehold reform). One important factor in public interest was avoiding disproportionate cost or balancing available funds across a range of needs. Each or both of these could be advanced as a legitimate proportionate justification. It had been upheld in recoupment provisions in personal injuries cases (Pearson and UK) and expensive special provisions for a disabled pupil in a small school (McIntyre v UK) and a right to legal aid disallowed on means (DS v Netherlands).
[45] The final authority, and a case before Human Rights, was R v C.I.C.B. ex parte P. v G. Counsel looked on this case in great detail. It showed how policy meant hard choices had to be made. It was not for the Court to decide what should be socio-economic policy. There had to be balancing among many groups who were apparently deserving of compensation. Road Traffic cases were excluded. There were problems of investigating old cases and resources were not infinite. The common law arguments in that case were valid for this, a Convention case.
[46] The 1978 Report showed how costs were considered and had to be controlled and the 1999 Consultative Paper threw up the same issues. It accepted that hard choices had to be made with finite money, and the "same roof" rule had been carefully considered.
[47] A failure to change the rules was not irrational in terms of judicial review or unjustified in terms of the Convention. The aim was legitimate, the response perfectly proportionate and there was no unlawful discrimination.
[48] In his final address Mr Sutherland made a number of points. He said that his client was entitled to the order sought. He referred me to Wilson v First County concerning the validity of consumer credit agreements. Here the decision was made on the scheme after the Human Rights Act came into force. There had been time to ensure that existing legislation was Convention compliant or amended as necessary. He referred me to Plowden & Kerrigan, Advocacy and Human Rights at page 199, and 2000 Public Law, page 361.
[49] He then referred to the Petitioner's application for compensation No 7/8 of process and the relevant Scheme No 7/6. He said she would qualify at least under the heading of "mental injury", and medical reports would support her position.
[50] After some passing clarification on the citation of Z. v UK he returned to the "linkage" point. He was not suggesting that there had been any breach of the primary Articles (eg Article 6). It was enough if the subject matter fell within it to allow recourse to Article 14. Abdulaziz made that clear. In Botta there was no right and the wrong article had been chosen. The cases on confiscation of property showed either no right or one dependant on a change in the law. I should rely on and follow X. v Netherlands. Gaygusuz was also in point as the subject matter was within Article 1 of Protocol No. 1. The mere subject matter gave the right and payments under it did not matter. Poirrez merely took this a stage further and was not mentioned by the Court of Appeal in Carson. C. v Secretary of State proceeded on a concession which is not made here. Finally, I was asked to consider. R. v Ministry of Agriculture &c. ex parte First City Trading and that is a convenient point to begin my own discussion of the cases. The case related to an alleged inequality of treatment arising out of the Beef Stocks Transfer Scheme introduced in the UK following the BSE crisis and at a time when there was a world wide ban on exports of beef from the UK. The scheme benefited operators of slaughter houses and cutting plants but not those who simply exported beef. The applicant exporters complained of unequal treatment. They challenged the scheme seeking judicial review. The case largely failed because the scheme had not been made under any power or duty of Community Law. From paragraph 67 onwards Laws J. analysed the differences between the Wednesbury rules and the doctrine of proportionality. He also explained the correct attitude of the Court to what measures a decision taker had taken.
[51] In Southwark London Borough Council v St Brice the defendant had a secure tenancy of a house in Walworth, London. His rent fell into arrears and the landlord sought possession. After sundry court procedure and a continuing failure to pay, the landlord evicted him. The final warrant for possession was obtained without notice. The tenant complained of breaches of Articles 6, 9 and 14. The Court of Appeal held that the warrant was an administrative act giving effect to what had already been determined. There already had been a hearing and Article 6 did not require there to be further hearings. In any case the tenant could have gone to court as he had done in the past if he had wished further hearings for his protection. It was not wrong to put that burden on him. The landlords had to protect public funds and evict those who did not pay. That safeguarded the interests of others who needed housing.
[52] The claim for discrimination under Article 14 was on the basis that the tenant found himself in the County Court rather than the High Court where he would have received notice of the warrant under a different set of rules. However, the landlord's choice of forum was not based on any personal characteristic of the tenant. There was no discrimination on the basis of "status". An efficient procedure for routine execution of the court's orders was in the public interest.
[53] Next comes two conjoined cases reported as R (Carson) v Secretary of State for Work & Pensions &c. The claimant Carson was a South African resident who had spent most of her working life in England and had paid full National Insurance contributions. She received a UK state retirement pension but no inflation uprating because she lived abroad. She sought judicial review under Article 1 of Protocol No. 1 and Article 14. Reynolds, who was 24, received a contributions-based jobseekers allowance which amounted to less money than someone aged over 25. Under the same Article, she alleged discrimination on the grounds of her age.
[54] What was in issue before the Court of Appeal was whether Article 14 was engaged at all. It was held that Article 14 was engaged because the payment of contributions gave rise to a pecuniary right constituting a "possession" (Article 1). While a reduction as such might not violate Article 1, if it were done on discriminatory grounds that had to be justified, and may require positive justification for less favourable treatment of recipients in comparative positions.
[55] In Carson's case she and the chosen comparators were not in a position requiring justification. In Reynolds case they were but the respondent had shown reasonable justification.
[56] In part Carson's case failed because it was difficult to identify exact comparators in other countries due to bilateral arrangements. The cost to the public purse of making the increases was a factor and the very variable circumstances of pensioners living abroad was also important where the cost of living might be less. The effects of an across the board increase would be random and a refusal to do so did not need justification compared to the clear and certain effects of the uprate for UK resident pensioners.
[57] The Court then went on to consider whether there was in fact an objective justification for the alleged discrimination. The claimant had no legitimate expectation of any uplift. The leaflets sent to her about this was clear. The cost of uprating would be daunting with serious implications for the public finances. It was not for the courts to confine and circumscribe the elected government's economic policies. In this area the decision making power of the elected arms of government was at its greatest and the constraining role of the courts modest. Plainly it was a political matter.
[58] When he came to deal with the case of Reynolds, Laws L.J. found the positions of persons under and over 25 so similar that it called for positive justification for less favourable treatment. It applied only to the contributory jobseekers allowance and not to the non-contributory income support. Historically the split at 25 came in because about that age most people were fully independent. The age dividing line had been the subject of various reports and White Papers. It was recognised that at the margin it was always open to argument. When jobseekers allowance was introduced stress was laid on the fact that people aged 18 to 24 earned less, and had lower living costs than those over 25. Encouragement to live with other family members was also thought to be a beneficial thing for the younger age group. At paragraph 81/2 the Court refused to enter an argument for what any particular view of broad policy should be. Different views could reasonably be taken of what was the best age to increase the benefit. It was not for the Court to make Government policy to vindicate Convention rights. There was shown reasonable justification for the differential.
[59] What is important beyond the actual decision in this case is what was said by the Court about Gaygusuz v Austria. The Court linked the payment of contributions by the applicant to the unemployment insurance fund as being enough to confer a pecuniary right and thus qualify as "possessions". This was in spite of the fact that payment of emergency assistance did not automatically result from payment of these contributions. With this interpretation the Court could go on to consider the contributions made in the cases before it and use that to apply or disapply Article 14. [I have recently been advised that Carson is on appeal and will be heard by the House of Lords in February/March 2005.]
[60] Wandsworth London Borough Council v Michalak was referred to and is of importance for what was said about "comparators" in relation to Article 14. The facts concerned succession to a secure tenancy and identifying what was meant by a member of the tenant's family. I do not need or intend to rehearse the facts. What is of importance is what was said by Brooke L.J. about comparators at para.20. He said this inter alia " ... a Court ... should ask itself ... four questions.... If the answer to any of (these) is no, then the claim is likely to fail .... These questions are (i) do the facts fall within the ambit of one or more of the substantive convention provisions ... (ii) If so was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other? (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved"?
[61] He went on to stress the potential overlap of some of these and the need for caution.
[62] Gaygusuz v Austria was a case much mentioned by both sides and has given rise to difficulties of interpretation. The applicant was a Turkish national who lived and worked in Austria for 11 years. He then became unemployed and latterly unfit for work and eventually returned to live in Turkey. He received benefits when off work and an advance on his retirement pension in the form of unemployment benefit. When that entitlement expired he asked for an advance in the form of emergency assistance. That was rejected as he did not have Austrian nationality, a necessary condition for payment of an allowance of that type. Unemployment benefit was financed partly by unemployment insurance contributions every employee had to pay.
[63] The Commission found no breach of Article 6, but that because the obligation to pay "taxes or other contributions" fell within the field of application of Article 1 of Protocol No.1 the ensuing benefits also fell within that. They then found discrimination on the basis of nationality.
[64] The Court had no difficulty in agreeing with the Article 14 discrimination and the Government arguments for objective justification failed. They did not need to deal with the Article 6 and 8 arguments. Differing, however, from the Commission they found (para.41) that the pecuniary right under Article 1 of Protocol No.1 of emergency assistance did not depend solely on contributions. No full or detailed reasons were given.
[65] Another case involving criminal injuries is C v Secretary of State, a decision of Mitting J. The claimant when a baby was assaulted by her mother's boyfriend. Her injuries were very severe. Her grandparents obtained custody. She sought and obtained an award of compensation. However, a dispute arose about legal costs as the Scheme expressly did not allow for them to be met.
[66] Articles 6, 14 and Article 1 of Protocol No. 1 were in issue. At para.43 it was conceded that "a well founded claim" to compensation was a civil right within the meaning of Article 6. The judge agreed with that but went on to hold that in cases like these there was no breach. The State was entitled to limit the cost and the claimant could obtain representation (paras.47/8).
[67] It was then argued that her right to compensation was a possession and she had been discriminated against. The comparators were adults of full capacity who could advance their claims without legal assistance. She could not, it was said.
[68] At para.53 the judge accepted that her right to compensation was a "possession". He then rejected the claim for discrimination holding it was not due to any personal characteristic or status.
[69] While the matter before me was at avizandum both agents, of consent, on 29 April 2004 furnished me with a copy of the decision of the Court of Appeal in C given on 3 March 2004. I am obliged for this assistance and now proceed to consider what happened there.
[70] Once more the question was whether the State was obliged to fund access to the Scheme for those otherwise incapable of establishing their claim and that the limited provisions about costs of examination and representation do not meet this obligation. It appears (para.21) that the question of expert reports was resolved and not a matter before the Court (para.48). Legal costs was. This time Articles 6, 8, 14 and Article 1 of Protocol No. 1 were involved.
[71] The Court (para.38) rejected Article 8 as applying. They also rejected the argument that the costs of securing a well founded claim to compensation fell within Article 1 of Protocol No. 1. Discrimination was rejected since no proper comparator could be identified (para.36/7). That left Article 6. It was accepted that the claim made involved a determination of civil rights by the parties. That concession was not embraced by the Court (see paras.42 and 46). The Court went on to distinguish an earlier Irish divorce case and follow more recent consistent contrary decisions about legal aid (para.44).
[72] They then decided she had not been deprived of a fair hearing. Her right was recognised at once and was effective and while the Scheme could have provided for expenses, it was not bound to. Diminishing her award by the costs of representation might seem unfair but had not deprived her of the possibility of a fair hearing.
[73] Kjeldsen v Denmark was a case with a complex and somewhat turbulent history. It was a conjoined application and that caused problems. It concerned compulsory sex education in primary schools. The applicants objected on the basis of their religious beliefs and also to the use of certain text books. It was alleged that the Danish legislation was a denial of the right to education, and that they suffered discrimination.
[74] The details of the first point are not material for the case before me. They concerned the system of state education, the option for private schools or home education and the issue of pluralism within the State system for certain subjects. The Court found no breach.
[75] At paragraph 56 the Court rejected the discrimination claim because the comparator chosen (religious instruction objectors) was different in kind. Religious education imparted tenets whereas sex education was knowledge.
[76] The detailed reasoning in this early case is much more general and the later cases discuss these problems in much more detail as has been seen. I find more compelling logic in the partial dissent on discrimination.
[77] Pearson v UK was a decision of the Court. The applicant was a nurse who sustained back injuries in the course of her employment. She received benefits; sued her employers and accepted a settlement. In paying damages her employers withheld the amount of benefits received and paid this sum to the Compensation Recovery Unit. The payment was made as required by Statute.
[78] Before the Court she complained of being deprived of her possessions (Article 1 of Protocol No.1) and in addition, discrimination under Article 14. The comparators were accident victims receiving awards of less than £2,500 where recoupment of benefit did not apply.
[79] The Court took the view that the recoupment part was a possession within the meaning of Article 1 of Protocol No.1. However they went on to say that the measures to prevent being compensated twice could not be said to strike an unfair balance between the general interest and the rights of the individuals. The operation of the scheme was not disproportionate to the aim. There was also no discrimination, because the small claims exception could be justified on the basis of saving unwarranted administrative costs.
[80] It is of some further interest to note the argument about what are and can be the fruits of National Insurance contributions, which give no guaranteed return on payment or cover for the unexpected. They are the basis of social solidarity.
[81] D.S. v Netherlands was a decision of the Commission. The applicant was a middle aged woman cleaner. She was a Turkish citizen living and working in Rotterdam. She became unfit for work because of backache. She received certain benefits but later a dispute arose about the level of these. She sought to appeal and applied for legal aid. That was refused as the cumulative income of herself and her husband was above the limit.
[82] Before the Commission she relied on Article 6 but they took the view that it did not as such guarantee the right to free legal aid.
[83] For reasons that are not entirely clear they did not find any discrimination. It appears that they considered Article 14 applied and quoted the well known "mantra" from Abdulaziz about what is meant by discriminatory treatment. They then seem to say that it is a desirable aim to limit the costs of legal aid and on that basis the rule aggregating income was not unreasonable.
[84] Wessels-Bergervoet v Netherlands concerned a complaint about a reduction in a pension. The applicant and her husband had always lived in the Netherlands. At various periods over 20 years her husband had worked in Germany and neither had been insured under the relevant Dutch Old Age Pension Act. When the applicant reached 65 she was only awarded a reduced pension. It was clear from para.32 of the Court's decision that the scheme involved contributions. The applicant claimed gender discrimination (see para.37) on the basis of different rules for married men and women under the insurance scheme. The Government argued that payments out was not linked to contributions made, and the group of contributors was different to the group of beneficiaries.
[85] The Court, earlier, had decided that her right to a pension was to be regarded as a "possession" within the meaning of Article 1 of Protocol No.1. That engaged Article 14. In the result the claim succeeded and the difference in treatment had no "objective and reasonable justification" (para.49 and 52/4).
[86] Darby v Sweden was about tax. Dr Darby worked as a doctor for the Swedish railways. He lived mainly in Finland and was taxed at a reduced rate. Swedish law was then changed and he then had to pay more tax including a church tax. He took the matter before the Courts in Sweden but failed. Before the Court he argued discrimination insofar as Swedish residents who were registered dissenters were not liable to the church tax. Paragraph 33 shows that the respondents conceded that the difference in treatment was not a legitimate aim, and the Court had no difficulty in finding a violation of Article 14. The excess tax he paid was repaid to him. It was stressed that the rights enjoyed under the Convention and its Protocols had to be personal.
[87] Jantner v Slovakia was again a case involving legitimate expectation. The applicant left Czechoslovakia for Germany in 1968. After judicial rehabilitation in 1990 he began to live partly in both countries. He lodged a claim for restitution of family property. The local Courts refused and he then claimed violation of his property rights in terms of Article 1 of Protocol No.1. To some extent the case turned on when he came to have a permanent residence and the problems of living in two places. It again raised the issue of hoping that a long extinguished property right may be revived. He had on the facts no "possession" and Article 14 was also not engaged.
[88] Gratzinger & another v Czech Republic concerned heritable right. The applicants in 1978 bought a house and land. In 1982 they went abroad on holiday and did not return. They eventually settled in California and became American citizens. In 1983 they were convicted of deserting the Republic, sentenced to imprisonment and their property confiscated and later sold, allegedly to Communist party officials. Later various actions in the local Courts failed to recover the property, in spite of certain changes in the local law to allow for rehabilitation and restoration of property on certain conditions. The applicants claimed that they fell within Article 1 of Protocol No.1 and, although they now did not have to satisfy any permanent residence requirement, they were discriminated against as they were not Czech nationals.
[89] It could not be said that the property qualified as existing possessions. They were not owners, merely claimants. Also unless the local law was changed again they had no possibility of regaining their former ownership. A belief that the law would be changed was not a legitimate expectation. That was a mere hope of restitution. A legitimate expectation had to be based on a legal provision or a legal act such as a judicial decision.
[90] As the facts did not fall within Article 1 of Protocol No.1, Article 14 had no autonomous application.
[91] Prince Hans-Adam II of Liechenstein v Germany concerned property rights in a painting. The applicant's later father had owned a painting which was kept in a family castle in the former Czechoslovakia. After the war it was confiscated by decree issued by the President of that country, being German property and confirmed by the local Court. In 1991 it was loaned to Cologne and the applicant sought to recover it. He failed before the Courts in Germany, and Cologne then returned the painting to the Czech Republic.
[92] The matter eventually came before the European Court where inter alia it was argued that the German Court decisions had violated his right of property. It was held that he retained no title to the painting nor had any legitimate expectation of obtaining effective enjoyment of it. There was accordingly no interference with his possessions.
[93] The applicant also claimed Article 14 discrimination on the basis of his status as a foreign national. He claimed that certain German legislation did not treat him equally with German nationals. However, as the facts in issue did not even fall within Article 1 of Protocol No.1 there could be no discrimination. Article 14 had no independent existence. At para.92 the Court emphasised more than once, that what was in issue was "his" rights.
[94] An important case, pre Convention, in R v C.I.C.B. ex parte P and G. Like the present case, it concerned sexual abuse on children, occurring before 1 October 1979. The claims were rejected in view of the "same roof" rule. The applicants sought judicial review. They argued that they had a legitimate expectation that the scheme would be administered nationally and fairly. Their exclusion as a class was now (since recent changes) recognised as unjust, and to maintain in force the pre-October 1979 rule was unfair and irrational. There was no legitimate connection between the aims and the means employed and no evidence for the continuation of the exclusion.
[95] The contrary argument was that there could be no legitimate expectations on the scheme and payments were ex gratia. It was for the respondent to decide policy and what was fair and the Court could not make a judgment on the allocation of limited resources.
[96] One of the problems was that the scope of the schemes was taken under prerogative powers and the Court is ill equipped to deal with competing claims on the public purse (857E). Neill L.J. did not consider the matter justiciable. He expressed no concluded final view on legitimate expectation or irrationality (which he saw as a difficult argument).
[97] Evans L.J. agreed on irrationality saying that it was impossible to say that some limit on claims was an irrational feature. He went on to give a slightly different view on legitimate expectation. He took the view that excluding prior "same day" incidents was not high policy in the same way that national survival or foreign affairs was. This scheme, he thought, was purely driven by finance (860/1). He gave no view on legitimate expectation and went on to indicate that even finance could be a proper subject of judicial review.
[98] Peter Gibson L.J. did not seem attracted to the view that allocation of money or a legitimate expectation was outwith the Court's jurisdiction (863D/F). He did agree that the prospective revised scheme in 1979 was not irrational and it was for the Home Secretary to decide on allocation of limited resources.
[99] It is not entirely clear what is the ratio of this case. Insofar as it was said that the scheme was not irrational that may be taken as the true reason for refusing judicial review. It does assist the respondent in this case to some degree but the common law arguments in my view allow for a wider test of what is irrational unlike the Convention where what is proportionate to a legitimate aim has to be objectively justified and is viewed more strictly.
[100] McIntyre v UK is an example where financial cost was of importance. The applicant was a teenage schoolgirl who suffered from muscular dystrophy. She had had great difficulty with the stairs at her primary school. The school was a mainstream one. She made repeated requests, when there, for a lift to be installed to facilitate access. In spite of the school making every alternative effort to help her, she sought judicial review of the refusal to install the lift. That application was dismissed. Before the Commission, and founding on her right to education, she alleged Article 14 discrimination. The Commission did not decide whether "physical disability" was a "status" within Article 14. The right to education left a wide discretion over how to make the best possible use of resources in the interests of disabled children generally. A number of resources had been allocated to provide for her disability, e.g. moving her classroom downstairs, thus not denying her the right to education. The only discrimination was that her able bodied colleagues could attend classes on the first floor whereas she could not.
[101] It was considered a legitimate aim to provide education in a manner consistent with practical and efficient use of resources and public funds. The primary school was small. The technical report showed the cost of a lift to be very high. The refusal was therefore not disproportionate to the aim.
[102] Larkos v Cyprus involved alleged discrimination over renting property. The applicant was a civil servant who had lived in a house with his family for many years. When he retired he was asked to vacate his house. He had maintained and improved it. He said that his rights as tenant were property rights within Article 1 of Protocol No.1 and he was the victim of discrimination in two ways. The State was protected when it rented from a private individual and so was a tenant in the private sector. He was not. His lease made no reference to the let being in his capacity as a civil servant or what was to happen when he retired. The rent was a market rent.
[103] The Court was of the opinion that he was in a similar position to a private tenant. The State had not provided any public interest grounds to treat him differently. Agreeing with the Commission the Court found a violation of Article 14 taken with Article 8. They did not find it necessary to deal with the applicability of Article 1 of Protocol No.1.
[104] Botta v Italy is a case of some importance. The applicant was a physically disabled man. At the age of 50 he went on holiday to an Adriatic resort and discovered that he could not gain access in his car to the beach and the sea. This was in contravention of Italian legislation obliging private beaches to facilitate access for the disabled. Before the Commission his claim of a breach of Article 8 failed. What he was invoking as respect for his private life was a purely social matter. The Commission was also of the view that Article 14 had no application. The Court agreed, finding that Article 8 was not engaged at all. There was no link between the alleged failures to provide private bathing and the applicant's private life. Article 14 had no independent existence and could not apply unless the facts of the case fell within another Article even though that other had not in fact been breached.
[105] Z v UK concerned inter alia an alleged breach of Article 6. The applicants were all children who had been abused by their parents, but whose claim against the relevant local authority before the domestic courts had failed due to there being no actionable duty of care. The applicants had failed ultimately before the House of Lords.
[106] What seems to have been complained of was a denial of access to the Courts simply because it had been held they had no relevant case. This "striking out" procedure did not prevent access to the Courts. Such a decision was not an arbitrary removal of the Court's jurisdiction. Article 6 did not guarantee any particular content for civil rights.
[107] As can be seen from the rest of the report the Court found a remedy for the inhuman treatment they had suffered, relying on other provisions of the Convention (Articles 13 and 41).
[108] Matthews v Ministry of Defence concerned the Crown immunity in tort for asbestosis suffered by a sailor during naval service. The question was whether that was compatible with Article 6. The long existing Crown immunity had been repealed in 1987 but only prospectively.
[109] What I think is important in this case is that the Crown immunity was properly regarded as a substantive right and not some procedural bar or immunity. I cannot possibly improve on the analysis given at paragraphs 42/3 by Lord Hoffman, where he explained why Article 6 could have no application. He was very critical of the attitude of the Court in Osman which had been corrected in Z.
[110] These matters of substantive law often have to balance issues of fairness against use of resources, not necessarily matters of human rights. The fact that there was no substantive remedy did not mean that the Courts could not examine the legality of conduct by public officials.
[111] Wilson v First County Trust Ltd concerned Article 6 and Article 1 of Protocol No.1. It arose out of an agreement entered into with a pawnbroker before the implement of the Human Rights Act. The agreement did not contain all the prescribed terms under the Consumer Credit Act 1974; therefore under that Act it could not be enforced by the Court. Did this then mean that the pawnbroker was denied access to the Court and his right of property?
[112] The facts were simple. Mrs Wilson borrowed £5,000 from First County. The security was her BMW car. She defaulted on the loan and sought return of her car. She succeeded. As Lord Nicholls observed (104G) from those modest beginnings the case grew. For present purposes it is not necessary to look at the lower courts proceedings. By the Lords, the original parties had all but vanished and substantial organs of State and commerce took the field.
[113] It was held that the Human Rights Act had not retrospectively invalidated arrangements made under the 1974 Act which would have altered rights and obligations. Article 6 was not engaged by the complaint that the contract was unenforceable. Article 6 did not create any substantive civil right. The fact that the creditor's rights were restricted did not bar the Courts from considering the point.
[114] As to property, it was for Parliament to decide what types of agreements could be enforced. Money lending transactions can give rise to particular social problems and Parliament was entitled to lay down proper formalities for enforcement.
[115] An unusual case is Poirrez v France. Once again it involved Article 14 and Article 1 of Protocol No.1. The claimant was a man of 36 who was severely disabled. He had been adopted when younger by a French National and lived in Paris. Originally he was from the Ivory Coast. He claimed a disabled adult's allowance invoking his status as a French resident of Ivory Coast nationality, and the adoptive son of a French National living and working in France. His claim was rejected at various stages on the grounds that he was neither a French National nor a national of a country that had signed a reciprocal agreement regarding award of this allowance.
[116] After years of unsuccessful Court procedure at the highest level in France and examination of French Social Security law the matter came before the Court. Reaffirming that Article 14 had no independent existence (para.28) the Court then appears to have taken the view that, because a benefit paid after contributions by him (here, his being awarded an emergency allowance) fell to be described as a pecuniary right, it did not follow that a non contributory benefit could not also be a pecuniary right. The reasoning is hard to follow and purports (para.29) to rely on Gaygusuz.
[117] At para.31 the Court went on to list the various features of the claimant which had secured him income support, viz, he had a disability card, lived in France, was the adopted son of a French citizen. Noting that now since 1998 his lack of nationality would not prevent him getting the allowance they concluded that he had been discriminated against for the allowance prior to 1998.
[118] August v UK was a case involving a claim for criminal injuries compensation. The applicant was taken into care at the age of 8. When he was 13 he met a much older man in a public lavatory and had oral sex with him. He was paid money. Over the next four months the man committed further acts of gross indecency and buggery on him. The man was convicted but on appeal his sentence was reduced as the applicant had sought him out to get money for homosexual activity. Four years later he applied for compensation but was refused because he was not the victim of violence, had in fact consented to the acts and sought out the man to obtain money for sex. He had also committed criminal offences himself. Subsequent attempts at review, appeal, judicial review and further appeal were unsuccessful. On the facts there was no violence.
[119] Before the European Court he complained inter alia of breaches of Articles 8, 6 and 14.
[120] The claim under Article 8 failed because the man had been prosecuted by the State and that Article gave no right to receive compensation. His own conduct showed he was a willing and active participant whether he was a vulnerable child or not. Compensation was ex gratia and Article 6 was not thereby engaged. He had had access to the Courts; and Article 6 did not itself give any particular content to a civil right. He had no civil right to obtain any ex gratia award. He had not been treated differently on any element of personal status. Also, what actual crimes were covered by the Scheme was a matter within the State's margin of appreciation and had an objective and reasonable justification.
[121] In Rasmussen v Denmark the Court was concerned with the disputed paternity of the child following the divorce of her parents. The father was disputing paternity. The Danish lower court and appeal court refused his application as out of time. There was a time limit for such applications by fathers but not for mothers or the child (the reasons are well explained at 374). The father complained of a breach of Articles 6, 8 and 14 saying that inter alia there was sex discrimination. Paragraph 29 at page 377 of the Judgement confirmed that as long as the facts in issue fell within the ambit of the Convention provisions, that gave life to Article 14.. The Court (para 32/3) found that Article 6 and 8 were in issue and were not breached for reasons that are not entirely clear to me. (I have to say that on Article 8 I prefer the logic of the concurring opinion of Judge Gersing). They went on to hold that there was no breach of Article 14. Beyond being an illustration of "linkage" I do not consider this case advances the argument further.
[122] Next is Abdulaziz v UK when the questions of Article 14 arose in the area of immigration; where the husbands of women permanently settled in the UK were refused permission to remain with or join them. It is not necessary to go into the detail of the various Immigration rules but the Commission found a breach of Article 8 and 14 and the Court disagreed that there was any violation of Article 8 alone (See 497.8) but still found that Article 14 was applicable. At paragraph 71 the following is stated:
"... According to the Courts established case law, Article 14 complements the other substantive provision of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by these provisions. Although the application of Article 14 does not necessarily presuppose a breach of these provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter". (My emphasis).
[124] It was held that the decision to refuse was unreasonable. The Department were wrong rigidly to rely on the guide which had no statutory force. The student had been guaranteed a place which allowed him to apply for a grant. The Department would have budgeted to pay the grant. Their approach to the closing date fettered their discretion.
[125] The Department had advanced in a letter a further reason for the refusal viz. that it would be "unjust to those whose similar cases have been rejected in the past". That approach was described by Lord Morton (1999 J/k) as irrational.
[126] Gustafson v Sweden concerned a claim for compensation following the applicant having been a victim of a kidnapping and extortion. The applicant himself had a criminal record and on appeal the kidnapper's conviction was quashed. The claim for compensation was rejected and the applicant then alleged a breach of Article 6(1).
[127] Agreeing with the Commission, the court held that the right to compensation was a civil right, personal to him and of a pecuniary nature. However, the court concluded there had been no violation of Article 6. He had not requested an oral hearing though he could have done so. His claim had been given proper consideration and sufficient reasons for its rejection had been given. Article 6 did not guarantee a right of appeal.
[128] Masson v Netherlands concerned a police investigation and the arrest of the applicant. He was charged with forgery and corruption over certain alleged irregularities in the operation of the Dutch civil service pension fund. He was eventually acquitted on appeal. He claimed compensation for inter alia loss of liberty and the Dutch criminal court rejected these. He then complained of a violation of Article 6(1). The claims had been rejected "in chambers" (para.56) and for that reason only the Commission found a violation of Article 6(1). The claim of bias was rejected. However, the court (paras.51/2) took a different view holding that the claims did not concern any right. The final acquittal did not make their pre-trial detention retrospectively unlawful.
[129] R (Alconbury Developments Ltd) v Secretary of State for the Environment was referred to for the important test of how to view the many cases in Europe. The test is set out in the words of Lord Slynn at para.26, viz. "...In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights...".
[130] James v U.K. concerned the compulsory transfer of leasehold properties in London to tenants. The properties had been part of the estate of the Duke of Westminster. His trustees complained that this transfer was a breach of Article 1 of Protocol No.1 and inter alia Article 14. The Commission found no breach and referred the case to the court.
[131] Leasehold enfranchisement and reform was government policy giving tenants a right to buy on certain conditions. The court found (para.45) that the taking of property in pursuit of legitimate socio-economic policies was not an infringement of Article 1 and the Government was best placed to judge what was in the public interest. The margin of appreciation had to be wide but subject always to the court's scrutiny of the facts with reference to which the authorities acted (para.46). The court then looked in detail at the facts many of which must have had a political flavour including compensation and particular transactions. The conclusion (para.72) was that there was no breach of Article 1 of Protocol No.1.
[132] The applicants then sought to argue discrimination on the grounds of the nature of the property, really because of wealth. The court held that this complaint was not made out. The aim was legitimate, and proportionality within the margin of appreciation was not transgressed (para.76).
[133] X v Netherlands is an old decision of the Commission. The applicant was a Norwegian citizen whose late husband was a sea captain and also Norwegian. They lived in Rotterdam. The husband paid compulsory contributions to a Norwegian pension fund and, somewhat unwillingly, to the Dutch social insurance pension fund. After his death she received a pension from both funds but her Dutch pension was proportionally reduced. She claimed this was in breach of Article 1 of Protocol No.1 and Article 14.
[134] Following earlier jurisprudence the Commission held that, despite the contributions, she had no right to receive a Dutch pension because of the principle of solidarity underlying the way in which the Dutch fund was distributed. Accordingly any benefit under the scheme was not a property right and therefore not a "possession" in the sense of Article 1 of Protocol No.1.
[135] That left the Article 14 complaint. Although the complaint was ultimately rejected on the basis of solidarity and justified differentiation between pensioners the Commission said that even though the pension benefit was not a possession, nevertheless, they could consider the alleged violation of Article 14 as it related to discrimination over the right to peaceful enjoyment of possessions. They then went on to consider and reject the merits without giving any detailed reasons for saying why Article 14 applied at all. That concludes my analysis of the many cases.
[136] Let me now move finally to deal with my resolution of the issues argued before me. Before returning to any of the authorities I have to deal with the question of whether it is appropriate to grant reduction of paragraph 7(b) of the 1996 Scheme. That, as has already been noticed, preserves the "same roof" rule against pre October 1979 offences. The Human Rights Act 1998 came into force on 2 October 2000. Section 3 enacts
"... (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights...
(2) This section ......
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if... primary legislation prevents removal of the incompatibility...".
[138] Attractive as this sounds it seems to me to be wrong in law for this reason. The Human Rights Act is not retrospective and so a scheme valid when it was made cannot be reduced. I do not think it makes any difference when the decision on the petitioner's application was made. This scheme was operational in April 1996 and section 22(4) of the Human Rights Act does not apply to assist. There is clear authority for this proposition in the cases of Lambert and Wilson which I have already referred to earlier. Different considerations would no doubt apply if an attempt were made to challenge the 2001 Scheme. I am quite clear that I have no power to reduce the 1996 provision retrospectively. Whether its enforcement can be prevented involves consideration of the rest of the case. The petitioner's second plea-in-law will be repelled in due course.
[139] The second chapter of the case involves a direct consideration of some Convention rights as explained and interpreted by the Strasbourg and other jurisprudence. I approach this on the basis that I must follow the Human Rights jurisprudence where it is clear and constant (Alconbury).
[140] Let me begin by setting out the relevant Convention Articles in part.
[141] Article 6 provides inter alia:
"... (1) In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...".
Article 1 of Protocol No.1 provides:-
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest... The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
Article 14 provides (as relevant):
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as [sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth] or other status ....".
[143] Article 14, by contrast, has to be looked at as something which has no independent existence and it can only operate where it can be linked to another "rights conferring" article. That thread runs through many of the cases of which Botta is a good example. That matter was common ground between the parties in the case before me. It was also accepted, as the cases show, that there does not have to be a breach of a "rights conferring" Article for Article 14 to apply (Abdulaziz).
[144] Let me begin first with the assertion that Article 6 is engaged. Can it be said here that the petitioner has any right to Criminal Injuries Compensation which would create for her the civil right envisaged by Article 6? The cases tell me that a clear and unambiguous scheme can create such a right. Gustafson is a good example where in Sweden there were clear regulatory terms. The present scheme in the United Kingdom would also now confer a civil right. It is no longer ex gratia. That, however, is not any help to the petitioner. Where any award is completely discretionary or ex gratia in my opinion no civil right is created. Masson is an example of that. The case of August does not really assist. It is arguable that the court in that case erred on primary facts in thinking that the 1996 scheme was still ex gratia.
[145] The petitioner here has to take the domestic law as she finds it. Because of the continuation of the "same roof" rule under paragraph 7 mentioned before, she can have no civil right, and the terms of Article 6 do not allow any court to create one. That is made very clear by the case of James at para.81 although the case is mainly referred to for other purposes. The very petition before me shows that she has access to the kind of tribunal mentioned in Article 6. It seems to me that the continuance of the "same roof" rule is, in domestic law, a substantive bar which this petitioner cannot surmount in the same way as the Crown immunity prevented the plaintiff in Matthews. It is not a matter of mere procedural fairness, and on that basis I hold that Article 6 is not engaged at all. If it is not engaged at all no question arises over any breach. Article 14 cannot avail with Article 6 as I have already mentioned. There can be no "linkage".
[146] It seems to me that the petitioner faces exactly the same difficulties with Article 1 of Protocol No.1.
[147] Her argument fails to persuade. Article 1 of Protocol No.1 only protects property rights and because of the Scheme and the many changes, she had, and continues to have no such rights. Nor does she have any legitimate expectation. There is no impending change in the law and no decided case binding on me has suggested any such right. In my opinion it is not enough for the petitioner to say that the very subject of Criminal Injuries Compensation is a civil right. No doubt exists that it is; but unless it applies to her it avails her nothing in relation to Article 14. What has been called "linkage" simply will not operate. Rasmussen is a classic example of that rule in operation. Unless the petitioner can enjoy and exercise a Convention right then in my view Article 14 is irrelevant. Botta is a further good example. I agree that the cases involving Social Security have caused a number of problems in this area, but I think if they are looked at closely, the difficulty is lessened. Anything involving Social Security is rather special and payments in to any scheme do not automatically accrue benefits. The greater good of all and those who cannot help themselves have to be considered.
[148] The property cases (moveable: Prince Hans-Adam II) (and heritable: Gratzinger and Jantner) follow this consistent link and also point up the need to show reasonable expectation of a change in the law, if it is presently against a petitioner.
[149] I hold further, that provided the relevant article is engaged, it is not necessary to demonstrate an actual breach in order to link in to Article 14. That proposition is made clear in Abdulaziz (a case about Article 8) and in Rasmussen where it was plain the civil right was personal to him. The jurisprudence shows other cases where Article 14 was engaged, and breached, where the primary article was already engaged, e.g. Wessels Bergervoet, Gaygusguz.
[150] In the final analysis I find the only inconsistent case to be X v Netherlands. That allowed Article 14 to be considered even though the Commission found Article 1 of Protocol No.1 was not engaged. I suspect that the decision now would not be followed. It does seem odd to me that Article 1 was not engaged when her late husband did pay into the social security fund. Such payments nowadays have been found to be a reason for the engagement of Article 1 and examples of this are Gaygusuz and Carson (in part). From my earlier analysis of Poirrez I have to conclude that that case was special on its own facts and was a somewhat pragmatic decision. I do not think that anything which was decided in C v Secretary of State at first instance and now on appeal affects my decision that here there simply is no right. In C in the Court of Appeal the claim under Article 1 of Protocol No.1 was described as "manifestly well founded" (para.39). That simply cannot be said of this case.
[151] It follows that the petitioner here has no right personal to her under Article 1 of Protocol No.1 and so Article 14 is not engaged.
[152] There remains a final argument to be dealt with, should I be incorrect, and Article 6 or Article 1 of Protocol No.1, or both, are engaged in the petitioner's favour. How then is the court to view Article 14? The appropriate test then would be to look to the word "...status..." in Article 14 (see Southwark L.B.C.). In the present case that must mean that the correct comparator is a similar victim but one who is not caught under the "same roof" rule. It cannot be disputed that this petitioner has had different treatment meted out to her. Whether the difference in treatment amounts to discrimination brings in a number of wider convention issues. I have to consider questions of executive policy, whether there was a legitimate aim in view and also whether the refusal to alter the scheme for pre 1979 cases was a proportionate response. It has to be accepted that in all matters of policy there has to be a margin of appreciation allowed to the State.
[153] Legitimate aims of the State vary enormously. For example in James v U.K. the aim was to allow tenants to buy their own rented property. In the case before me the legitimate aim is to have a scheme to compensate victims of crime. Some of the cases cited to me from other jurisdictions show similar schemes. Here the State which enjoys a margin of appreciation has continually over many years taken the view that there has to be differential treatment for those pre 1979 cases. What reasons then have to be addressed in a case like this to justify such differentiation? Do the reasons amount to a proportionate response?
[154] At the start of this Opinion in paragraphs 9 to 18 I have set out what were the reasons for retaining the "same roof" rule and never changing it for the pre 1979 cases. I need not repeat these in detail. They basically relate to problems of evidence, witnesses and costs; primarily costs. It has to be accepted that in some kinds of cases very weighty reasons have to be given to justify discrimination for example if race, sex or religion is involved. It will be for the State to show and set forth what the reasons are. Gaygusuz is an example where weighty reasons had to be given where the discrimination was on grounds of nationality. I doubt if there is quite the same standard for a claim for criminal injuries. Different treatment can be justified on public interest grounds e.g. Larkos where it failed and James where it succeeded. Avoiding disproportionate costs, or balancing funds available across a range of needs is a proper reason and the jurisprudence shows that such is a legitimate and proportionate justification. Pearson; McIntyre and D.S. v Netherlands are good examples of that.
[155] Costs have always mattered in the administration of the Criminal Injuries Compensation scheme. That was one of the reasons why following the 1978 Report the reforms were made prospective. There is nothing wrong with that as was pointed out in P and G by Peter Gibson L.J. To make any new scheme retrospective could be unfair to those who had been denied in the past and who could no longer claim. Socio-economic policy choices always involve hard decisions and some unfairness. The Executive which collects taxation must be allowed to make the choices. It is not a matter for the courts who have no expertise in this area. The courts cannot balance competing claims on the public purse or be aware of an extra demand in one area causing problems in another. Provided the evidence shows, as it does in this case, that the whole matter was thought about before a decision was taken, then it is not for me to say it was irrational in the Wednesbury sense or out of all proportion in the Convention sense. There has, against a background of escalating costs, been a continuing exercise to allocate resources and balance them between particular groups. The very detail of the precise matter before me has been looked at more than once and no doubt "hard choices" have had to be made. Accordingly for these public interest grounds I am unable to say there has been any Article 14 discrimination.
[156] In the result the petition cannot succeed and I repel pleas 1, 2 and 3 for the petitioner sustaining pleas 3, 4 and 5 for the respondents.