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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Mackay of Drumadoon
Lady Dorrian
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[2007] CSIH 49
P1473/02
OPINION OF THE COURT
delivered by LORD OSBORNE
in
RECLAIMING MOTION
in
PETITION AND ANSWERS
in the cause
D.J.S.
Petitioner and Reclaimer;
against
(FIRST) THE CRIMINAL
INJURIES COMPENSATION APPEAL PANEL;
and (SECOND) THE ADVOCATE GENERAL FOR SCOTLAND
Respondents:
_______
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Act: Bovey, Q.C., Sutherland; Drummond Miller, W,S. (Petitioner and
Reclaimer)
Alt: Moynihan, Q.C.,
Lindsay; H.F. MacDiarmid, Solicitor to
the Advocate General for Scotland (Respondents)
8 June 2007
The background circumstances
[1] A
Criminal Injuries Compensation Scheme was set up in 1964 under prerogative
powers, "the 1964 Scheme". It came into
operation on 1 August
1964. The purpose of that Scheme
was the provision of compensation for victims of crimes of violence. Applications for compensation to the Criminal
Injuries Compensation Board, "the Board", under the 1964 Scheme, could be
entertained only where the injury concerned had been incurred after the
commencement of the Scheme.
Paragraph 7 of the 1964 Scheme provided:
"Offences
committed against a member of the offender's family living with him at the time
will be excluded altogether."
The reasons for that exclusion
were, first, the potential difficulties perceived as being involved in
investigating claims based on such offences;
and, second, the need to ensure that offenders did not benefit from any
award made. A copy of the 1964 Scheme is
No.7/3 of process.
[2] A
revised Criminal Injuries Compensation Scheme was introduced in 1979, "the 1979
Scheme". It came into effect on 1 October 1979. It applied only to incidents occurring on or
after that date. The principal change
effected in the 1979 Scheme was to extend its operation to the victims of
family violence. A copy of that Scheme
is No.7/4 of process. It was succeeded
by the Criminal Injuries Compensation Scheme 1990, "the 1990 Scheme", which
applied to all applications for compensation received by the Board on or after 1 February 1990. A copy of that Scheme is No.7/5 of
process. Both the 1979 Scheme and the
1990 Scheme were promulgated under prerogative powers.
[3] The
Criminal Injuries Compensation Act 1995, "the 1995 Act", received the Royal
Assent on 8 November
1995, on which date it came into force. Under section 1 of that Act, the
Secretary of State was required to make arrangements for the payment of
compensation to, or in respect of, persons who had sustained one or more
criminal injuries. Section 1(2)
provided:
"(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 persons to whom awards
may be made."
Section 3(1) of the 1995 Act
provided:
"(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 specified circumstances;
(d) for compensation to be held subject to
trusts, in such cases as may be determined in accordance with the Scheme;
(e) requiring claims under the Scheme to be
made within such periods as may be specified by the Scheme; and
(f) imposing other time limits."
Section 11 of the 1995 Act
contains detailed provisions relating to Parliamentary control of the making of
the Criminal Injuries Compensation Scheme contemplated in the Act.
[4] In
due course, the Secretary of State, in exercise of the powers conferred on him
by sections 1 to 6 and 12 of the 1995 Act made the Criminal Injuries
Compensation Scheme 1996, a draft thereof having been approved by both Houses
of Parliament, "the 1996 Scheme". In
terms of paragraph 83 of that Scheme, it came into force on 1 April 1996. All applications for compensation received by
the Criminal Injuries Compensation Board on or after that date were to be
passed to a new Criminal Injuries Compensation Authority, "the Authority", to
be dealt with under the1996 Scheme. Paragraph
84 of the 1996 Scheme provided that applications for compensation received by
the Board before 1 April
1996 were to be dealt with according to the provisions of the
1990 Scheme and, where appropriate, the earlier Schemes. It should be recorded that, subsequently, the
Secretary of State, in exercise of the powers already mentioned, made the
Criminal Injuries Compensation Scheme 2001, "the 2001 Scheme", a draft of which
had been approved by both Houses of Parliament.
Under paragraph 83 of that Scheme, its provisions came into force
on 1 April 2001. Applications for compensation received by the
Authority on or after that date were to be dealt with under the terms of the 2001
Scheme, with certain qualifications which are not material in the present
context. In terms of paragraph 84
of the 2001 Scheme, applications for compensation that had been received by the
Authority or by the Board before 1 April
2001 were to continue to be dealt with according to either the
provisions of the 1996 Scheme, or the provisions of the 1990 Scheme, as
the case might be.
[5] It
is appropriate to note certain provisions of the 1996 Scheme relating to
eligibility to apply for compensation, which are important in the context of
the present case. Paragraph 6 of
that Scheme provides:
"6. Compensation may be paid in accordance
with this Scheme:
(a) to an applicant who has sustained a
criminal injury on or after 1 August 1964;
...".
Paragraph 7 provides:
"7. 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."
Paragraph 8 of the 1996 Scheme
defines "criminal injury" for the purposes of the Scheme as meaning "one or
more personal injuries ... directly attributable to: (a) a crime of violence ...". Paragraph 9 of the 1996 Scheme provides
that, for the purposes of that Scheme,
" ... personal
injury includes physical injury ..., mental injury (that is, a medically
recognised psychiatric or psychological illness) and disease (that is, a
medically recognised illness or condition). Mental injury or disease may either result
directly from the physical injury or occur without any physical injury, but
compensation will not be payable for mental injury alone unless the applicant:
(a) ...
(c) was the non-consenting victim of a
sexual offence ...".
Paragraph 16 of the 1996
Scheme provides:
"16. Where a case is not ruled out under
paragraph 7(b) (injury sustained before 1 October 1979) but at the
time when the injury was sustained, the victim and any assailant (whether or
not that assailant actually inflicted the injury) were living in the same
household as members of the same family, an award will be withheld unless:
(a) the assailant has been prosecuted in
connection with the offence, except where a claims officer considers that there
are practical, technical or other good reasons why a prosecution has not been
brought; and
(b) in the case of violence between adults
in the family, a claims officer is satisfied that the applicant and the
assailant stopped living in the same household before the application was made
and are unlikely to share the same household again. ... ".
[6] The
petitioner avers that she was born on 11 February 1964.
Between Spring 1968 and August 1971 (that is between the ages of four
and seven and a half years) she was sexually abused by her father. As a consequence of this abuse she sustained
physical damage to her womb and is unable to have children. She also sustained damage to her mental
health, as a consequence of which she has suffered from depression, has tried
to commit suicide three times and has received psychiatric treatment since the
age of 16. On or about 9 October
1998, the petitioner reported the matter to the police. In or about June 2001 her father pled guilty
to and was convicted of indecently assaulting her. On or about 12 October 1999, the
petitioner made an application for criminal injuries compensation to the
Criminal Injuries Compensation Authority.
Since that application was made after 1 April 1996, it required to be considered under
the 1996 Scheme. In view of the terms of
paragraph 7(b) of that Scheme, the petitioner was notified by a letter
dated 8 November 1999 that no
award of compensation would be made. The
petitioner requested a review of that determination. In terms of a letter dated 27 August 2001, the
Authority advised the petitioner that, as a consequence of the terms of
paragraph 7(b) of the 1996 Scheme, no award of compensation could be made
to her. On or about 1 November 2001, the
petitioner appealed against said determination to the first-named respondent,
the Criminal Injuries Compensation Appeal Panel. On or about 15 April 2002 the
first-named respondent issued a decision letter of that date in which it
dismissed the appeal. The reason given
for that decision was the effect of the terms of the 1996 Scheme.
[7] In
these proceedings, the petitioner seeks declarator and reduction of
paragraph 7(b) of the 1996 Scheme, as being contrary to her rights
under the European Convention for the Protection of Human Rights and
Fundamental Freedoms, referred to hereafter as "the Convention". She also seeks reduction of the decision of
the first-named respondent, dated 15 April 2002, upon the same basis. The petition came before the Lord Ordinary at
a first hearing on 6 January
2004. On 8 July 2004 he
repelled pleas-in-law Nos.1, 2 and 3 for the petitioner, sustained pleas-in-law
Nos.3, 4 and 5 for the respondents and refused the petition. Against that interlocutor the petitioner has
now reclaimed to this court.
Submissions of junior counsel for the reclaimer
[8] Junior counsel commenced
with an outline of the background to the case, including the history of
criminal injury compensation. He drew
our attention to the provisions of the 1995 Act and the 1996 Scheme under
which the reclaimer's application had been made. Paragraph 7(b) of that Scheme was at the
heart of the issue in this case. He then
proceeded to explain how the 1996 Scheme was administered, making reference to
opportunities for appeal. The
first-named respondent was distinct from the Criminal Injuries Compensation
Authority. Section 11 of the 1995
Act was important. It provided for a Scheme
to be approved in draft by a resolution of each House of Parliament, before it
was made by the Secretary of State. It
was submitted that what was provided for in this section was a form of
secondary legislation, which would have a bearing upon what order might be made
by the court in these proceedings.
[9] Junior
counsel next drew our attention to the rationale underlying the establishment
of the 1964 Scheme, which was explained in a White Paper entitled "Review of
the Criminal Injuries Compensation Scheme:
Report of an Interdepartmental Working Party, 1978". That lay in the concept of social solidarity,
or the desire to express public sympathy for the victims of crime. The rationale was considered again in 1999
when the consultation paper, "Compensation for Victims of Violent Crime", was
published. Reference was made to
paragraphs 10, 11 and 21 of that document.
The rationale defined in these documents was reflected in the European
Convention on the Compensation of Victims of Violent Crime, subscribed at Strasbourg on 24 November 1983. This Convention set a minimum standard for
the signatory states. The significance
of the Convention on the issue in this case was that the Convention reinforced
the rationale stated, which had a bearing on the terms of the Scheme under
consideration. Counsel also referred to
the Explanatory Report on the Convention.
The United Kingdom was a
signatory of the 1983 Convention.
[10] It was instructive to note the explanation for the exclusion
expressed in paragraph 7 of the 1964 Scheme and also in
paragraph 7(b) of the 1996 Scheme.
It was to be found in Chapter 7 of the "Review of the Criminal Injuries
Compensation Scheme: Report of an
Interdepartmental Working Party 1978".
Paragraph 7 had been included in the original 1964 Scheme principally
for two reasons: "the difficulties of
establishing the facts and the difficulty of ensuring that compensation does
not benefit the offender". The Working
Party considered these justifications, but concluded that the problems were not
insurmountable. The Working Party
recommended in principle that paragraph 7 of the 1964 Scheme should not be
retained. The change it recommended in
1978 was to be for a limited period and experimental. It was submitted that the Report of the
Working Party showed that it had been recognised that there was an injustice in
the maintenance of the exclusion. Counsel
said that he had been unable to find any explanation for the retention in paragraph 7(b)
of the 1996 Scheme of the exclusion in relation to criminal activity which had occurred
before 1 October 1979.
[11] Counsel then proceeded to outline four propositions to be
advanced on behalf of the reclaimer.
These were: (1) that the decision
of the first-named respondent, dated 15 April 2002, was contrary to
section 6 of the Human Rights Act 1998;
the reclaimer was a victim of a violation of her rights under the
Convention by reason of that decision;
(2) the failure of the 1996 Scheme to include persons in the position of
the reclaimer, fell within the ambit of Article 3, et separatim, Article 8, et
separatim Article 1 of Protocol 1 of the Convention; (3) that in excluding persons in the position
of the reclaimer from the 1996 Scheme, the reclaimer had been treated
differently from comparators in analogous situations; and (4) that that difference in treatment did
not have an objective and reasonable justification.
[12] Counsel went on to elaborate each of these propositions in
turn. Dealing with the first
proposition, and on being asked to formulate the unlawful act of which the
reclaimer complained, counsel said that it was the failure, by the date of the
first-named respondent's decision letter of 15 April 2002 to have
paragraph 7(b) "removed" from the 1996 Scheme. The failure was not a failure of the
first-named respondent, but of the Government of the United
Kingdom and, in particular, of the
Secretary of State for the Home Department, represented by the second-named
respondent. However, a consequence of
the situation was that the decision of the first-named respondent, dated 15 April 2002, was an
unlawful act, even though that respondent had had no choice but to apply the
terms of the 1996 Scheme. Counsel then
focused attention upon the terms of section 6(2) of the 1998 Act. The 1996 Scheme was not itself "primary legislation",
within the meaning of section 21(1) of the 1998 Act. Accordingly, section 6(2)(a) had no
application to this situation. Rather
the 1996 Scheme was "subordinate legislation", within the meaning of the
definition in section 21(1) of the 1998 Act. However, counsel submitted that the court was
not dealing with what was referred to in section 6(2)(b) of the 1998
Act. It was not possible to interpret
paragraph 7(b) of the 1996 Scheme in such a way as to allow that paragraph
to be applied so as to avoid the violations of Convention rights about which
the reclaimer complained.
[13] Those represented by the second-named respondent had acted
unlawfully. By the time that the
decision of 15 April
2002 was made, paragraph 7(b) of the 1996 Scheme, under
reference to which the reclaimer's application required to be determined,
should have been amended so as to avoid a conflict between the provisions of
that Scheme and the reclaimer's rights under the Convention. In this connection it had to be noted that,
in terms of section 6(6) of the 1998 Act "An act" included a failure to
act.
[14] Counsel drew attention to paragraphs [137] and [138] of
the Opinion of the Lord Ordinary, who had held that reduction of
paragraph 7(b) of the 1996 Scheme was impossible, since, when created, that
Scheme had not been open to attack.
However, it was submitted that the compatibility of legislation with
Convention rights fell to be determined when such an issue arose for
determination, not as at the date when the legislation was enacted, or came
into force. In that connection reliance
was placed upon section 3(2)(a) of the 1998 Act, particularly the words
"whenever enacted" employed there. However,
in fact, the compatibility of legislation had to be assessed when an issue
arose for determination. In this
connection counsel relied on Ghaidan v
Godin-Mendoza [2004] 2 AC 557 at
para. 23, a case not put before the Lord Ordinary, Wilson v First County Trust
Limited (No.2) [2004] 1 AC 816 and Wessels-Bergervoet
v The Netherlands (2004) 38 EHRR 37.
[15] The Human Rights Act 1998 came into force on 2 October 2000. The reclaimer's application had been dated 11 October 1999. It had been refused on 11 November 1999. However, decisions on review had been made
after 2 October 2000. In particular, paragraph 60 of the 1996
Scheme provided that an officer conducting a review would not be bound by
earlier decisions on eligibility. It
followed that the decision taken by the Authority on 27 August 2001 was a fresh decision on the merits
of the matter to which the 1998 Act applied.
The reclaimer was a victim for the purposes of section 7 of the
1998 Act. In this connection reliance
was placed upon R. (Hooper) v The Secretary of State for Work and Pensions
[2005] 1 WLR 1681, paras. 52 to 59.
[16] Counsel then proceeded to elaborate his second proposition, to
the effect that the failure of the 1996 Scheme to include persons, such as the
reclaimer, fell within the ambit of Article 3, et separatim Article 8 of, et
separatim Article 1 of Protocol 1 to the Convention. In order to found a claim for discrimination
in terms of Article 14 of the Convention, there did not require to be a
direct breach of a Convention right, so long as the subject-matter fell "within
the ambit" of a guaranteed Convention right.
If the subject-matter came within the scope of the purpose of any such
right, it was "within the ambit" of the relevant article and thus sufficient to
found a claim for Article 14 discrimination.
[17] For example, Article 8 of the Convention did not confer a
right to a home. However, where a state
decided that there was a right for homeless people to be housed that brought
into play the provisions of Article 14 relating to discrimination; the provision of homeless accommodation was a
method by which the state had chosen to support respect for family life and
could be viewed as an aspect of it, thus falling within the ambit of
Article 8. In this connection
counsel relied upon Schmidt and Dahlstrom
v Sweden (1976) 1
E.H.R.R. 632, particularly at para. 39 at page 645; and Van
der Mussele v Belgium (1983) 6
E.H.R.R. 163, particularly para. 43 at page 178.
[18] In order to found a complaint of discrimination, the
subject-matter of the complaint had to be linked to a guaranteed right, so that
it could be said to fall within the ambit of a Convention article. Now the 1995 Act and the Schemes made
thereunder constituted a statutory basis on which those who qualified were
given an entitlement to payment of a sum of money under any Scheme. So, the statutory basis of the Scheme
provided those qualifying with a pecuniary right falling within the scope of
Article 1 of Protocol 1.
Domestic law had created this right to a financial payment and it was
discriminatory not to allow the reclaimer such payment. This was a subject-matter to which the
protection of Article 1 of Protocol 1 was afforded. Counsel submitted that there was no
distinction to be drawn between this type of payment and a social security
benefit, under reference to R. (Hooper)
v The Secretary of State for Work and
Pensions, particularly para. 88.
[19] It was the contention of the reclaimer that she had been the
victim of discrimination, contrary to Article 14, on the basis of "other
status". The status was that of being a
member of the same household as the offender at a particular point before 1 October 1979. Had she not held that status, she would not
have been disqualified. The leading
decision in this area was Willis v The United Kingdom [2002] 35 E.H.R.R.
547. The statutory entitlement to
receive criminal injuries compensation was based on an applicant fulfilling the
statutory criteria for that payment. The
basis upon which payment might be withheld or reduced for persons who satisfied
the qualifying criteria was also prescribed by the rules of the Scheme. Having regard to the underlying purpose of
the Scheme, the existence of statutory rules prescribing entitlement to
payment, the payment made under such a Scheme was analogous to non-contributory
social welfare benefits, which had been held to be a "possession" for the
purposes of Article 1 of Protocol 1.
So an application for compensation under the 1996 Scheme was within the
subject-matter of that article. In this
connection reliance was placed on Gaygusuz
v Austria (1996) 23
E.H.R.R. 364, particularly paras. 36 to 41 at page 380. That case dealt with a contributory Scheme
but there was no basis for distinguishing between a contributory and a
non-contributory Scheme, as appeared from Stec
v The United Kingdom (2005) 41 EHRR SE 18 295, particularly paras. 48 to 54.
[20] Counsel then turned to consider the relevance of Article 3
of the Convention to his submissions.
Article 1 of the Convention, taken along with Article 3,
required States to take measures designed to ensure that individuals within
their jurisdictions were not subjected to torture or inhuman or degrading
treatment or punishment, including such ill-treatment administered by private
individuals. Children and other
vulnerable individuals were entitled to State protection against such serious
breaches of personal integrity. Where
there had been a breach of Article 2 or 3, in order to provide an adequate
remedy, compensation for non-pecuniary damage flowing from the breach ought in
principle to be available as part of a range of redresses. This fell within the subject-matter of Article 3,
because the United Kingdom had chosen
to provide criminal injury compensation.
In this connection reliance was placed on Z and Others v The United
Kingdom (2002) 34 EHRR 3, particularly para. 109. Payment of criminal injury compensation was a
remedy in relation to Article 3 of the Convention.
[21] Counsel went on to consider the protection afforded by
Article 8 of the Convention. The
protection extended to the moral and physical integrity of the person. The scope of the Article was not limited to
preventing interference by public authorities, but might create positive
obligations requiring the adoption of measures designed to secure respect for
private life, even in the sphere of relations between individuals. In this connection he relied on X and Y v The Netherlands (1985) 8 E.H.R.R. 235, particularly paras. 22 and
23; Stubbings
and Others v The United Kingdom (1997) 23 EHRR 213, particularly paras. 59 to 64, a case specifically concerned with
childhood sexual abuse; and DP and JC v The United Kingdom (2003) 36 EHRR 14, particularly paras. 136
to 138. A civil law remedy of damages
was one way of securing respect for family life; however, as appeared from the cases just
cited, Article 8 did not necessarily require that States should fulfil
their positive obligation to secure respect for private life by the provision
of unlimited civil remedies in circumstances where criminal law sanctions were
in operation. It was evident from
paragraphs 48(c) and 49 of the 1996 Scheme that an award of criminal injuries
compensation would be reduced to take account of the full value of any payment
received as an award of damages in respect of the same injury, or that the
criminal injury compensation should be repaid in full up to the amount of the
other payment. Accordingly, the
provision of criminal injuries compensation for crimes of violence was
complementary to the remedy of damages against the perpetrator of intentionally
inflicted harm. Thus what was involved
here was within "the ambit" of Article 8.
[22] It was necessary to consider August v The United Kingdom
(2003) 36 E.H.R.R. C.D. 115. While this
case appeared to be contrary to the reclaimer's submissions, counsel's position
was that it had been wrongly decided.
The view of the court expressed in paragraph 3 was based on the
erroneous understanding that the criminal injuries compensation scheme under
consideration was an ex gratia one. What was said there could have no
applicability to a statutory scheme. In
any event, the decision was as to admissibility only. The court had been under a factual
misapprehension since, in fact, it had been dealing with a claim brought under
the 1996 Scheme. It had thought that Article 14
could not operate where legal rights had not been created, although in fact
they had. It was also necessary to
consider Stuart v The United Kingdom (Application No.41903/98), a case also involving sexual abuse of a
child where criminal injury compensation had been refused on the basis of
paragraph 7(b) of the 1996 Scheme. Once again, this was a decision on
admissibility. Furthermore, the court
did not refer to the 1995 Act or to the fact that the 1996 Scheme was
statutory, not ex gratia. The court had failed to address the issue of
whether Article 14 might be engaged by a statutory Scheme. It was submitted that this decision was
flawed and should not be followed.
[23] Counsel next turned to support his third proposition. He submitted that for discrimination to be
recognised there had to be a difference in the treatment of victims in
analogous circumstances. Here the
comparison was to be made between the reclaimer's position and a victim in
respect of an incident occurring after 1 October 1979 and a victim before that date, who
did not live in the same household as the assailant, in relation to an incident
occurring between 1964 and 1 October
1979. The "status" founded
upon was that of being a person who was living together with the assailant "as
members of the same family", to quote the words of paragraph 7(b) of the 1996
Scheme. It was that status which was the
sole basis for the difference in treatment.
Paragraph 16 of the 1996 Scheme did not require to be
considered; it was concerned with
persons who were admitted to benefit. A
difference in treatment was not per se discriminatory,
but might be.
[24] Counsel then proceeded to elaborate his fourth proposition, to
the effect that the difference in treatment identified here had no objective
and reasonable justification. The proper
approach to the application of Article 14 of the Convention was to be seen
from R. (Baiai) v The Secretary of State for the Home
Department [2006] EWHC 823 (Admin), particularly paras.116-120. There the court had repeated the test
formulated by Brooke L.J. in Wandsworth
London Borough Council v Michalak
[2003] 1 W.L.R. 613, at page 625.
Thereafter it had dealt with the extent to which that test had been
reconsidered by the House of Lords in R.
(Carson) v Secretary of State for
Work and Pensions [2005] 2 WLR 1369.
However, the court in R. (Baiai) v
The Secretary of State for the Home
Department had concluded that Article 14 did not apply unless the
alleged discrimination was in connection with a Convention right and on a
ground stated in the Article. If those
prerequisites were satisfied, the essential question for the court was whether the alleged discrimination,
that is the difference in treatment of which complaint was made, could
withstand scrutiny.
[25] It was for the party seeking to uphold a difference in
treatment to justify it, as appeared from Gaygusuz
v Austria, at para. 50
in the Opinion of the Commission and in the Opinion of the Court. What had to be shown was an objective and
reasonable justification. Such a
justification had to be convincing, although there was a margin of
appreciation. In this connection counsel
relied on Chassagnou v France (1999) 29 EHRR 615, particularly paras. 91 to 93.
Where a measure was intended to provide social solidarity, a decision
not to extend the same treatment to those in analogous situations required
specific justification, as appeared from Larkos
v Cyprus (2000) 30 EHRR 597,
particularly at para. 31. The convincing
explanation had to show how the difference in the treatment could be
justified. The correct approach to the
matter of justification was explained in Francis
v The Secretary of State for Work and
Pensions [2006] 1 All E.R. 748, particularly in paras. 17 to 31. What had to be found was a rational
justification for the difference in treatment.
Before the Lord Ordinary two justifications had been relied upon, as
appeared from paragraphs 9 to 18 of his Opinion, that is to say, first,
the problem of proof of violence in a family context, and, second, the need to
avoid collusion in a family and a risk of benefit being conferred by an award
of compensation on the offender.
However, difficulties of investigation were encountered in all claims
having a family context arising at whatsoever time. That could not be seen as a
justification. Furthermore, these
alleged justifications had not been insisted on in relation to abuse occurring
after 1 October 1979. The justifications advanced on behalf of the
respondents were described in Answer 9 to the petition at
pages 18B-19B of the reclaiming print.
The first of these was that to have made the change that occurred as
from 1 October 1979 retrospective would have been unfair to those victims
of family violence living in family with their assailants who had applied for
compensation before that date and been refused or had decided not to apply for
compensation on the basis of the Scheme then in operation. However, it was not truly a justification
that others than the reclaimer had been prejudiced by the decision made at that
time. In that connection counsel relied
on Woods v The Secretary of State for Scotland 1991 S.L.T. 197, particularly
at page 199. Further, National & Provincial Building Society
v The United Kingdom (1997) 25
E.H.R.R. 127, at para. 89, showed that where certain individuals challenge a
decision, at their own risk and expense, and others do not, the court will not
regard the former as being in an analogous position to the latter.
[26] The second justification advanced in the respondents' pleadings
was the financial implications of the decision to exclude. However, the fact that a financial
implication was involved was not enough to amount to a justification for
discriminatory action. Given that there
existed a limited amount of money available for the purposes of criminal
injuries compensation, the options were whether that limited sum should be
distributed in a discriminatory manner or a non-discriminatory manner. It would have been feasible to have adopted a
non-discriminatory distribution. In this
connection counsel relied on R. v Secretary of State for Education ex parte Schaffter [1987] I.R.L.R. 53,
particularly at para. 28. Counsel also
relied on Poirrez v France (2005) 40 EHRR 2, particularly paras.43 and 49.
Submissions of junior counsel for the respondents
[27] Counsel advanced four propositions,
which were to be elaborated in due course.
These were: (1) the Human Rights
Act 1998 did not apply to the reclaimer's application for criminal injuries
compensation because it had been made before the commencement of the Act; (2) if the 1998 Act did apply, the
application for criminal injuries compensation did not fall with the ambit of
Articles 3 or 8 of the Convention, or Article 1 of Protocol 1 to
it; (3) if any of these Articles were
engaged, the differences of treatment did not fall within any of the categories
of discrimination prohibited by Article 14 of the Convention, because
those differences were not related to status, or to any personal
characteristic; (4) if proposition (3)
were wrong, there was no unlawful discrimination involved, because there was a
rational justification for the differences of treatment.
[28] Before coming to make his detailed submissions, counsel pointed
out that paragraph 7(b) of the 1996 Scheme had been held lawful by the
European Court of Human Rights in Stuart v
The United Kingdom. The same paragraph had also been supported in
R. v Criminal Injuries Compensation Board and Another, ex parte P [1995] 1 WLR 845. In this connection counsel
relied on the observations of Peter Gibson L.J. at pages 863H to 864C. Accordingly, paragraph 7(b) had been
seen as lawful and rational; there was
therefore no historical miscarriage of justice.
So the observations of Lord Morton in Woods v Secretary of State
for Scotland 1991 S.L.T. 197 had no application here.
[29] Counsel then turned to elaborate his first main
proposition. He drew attention to the
fact that the reclaimer's application was dated 12 October 1999, and was
accordingly made under the 1996 Scheme.
The matter of the commencement of the provisions of the 1998 Act was
regulated under section 22(3) of the Act.
So far as section 6 of the 1998 Act was concerned, relied upon by
the reclaimer, it came into force on 2 October 2000 in accordance with Statutory
Instrument 2000 No.1851. It was
contended that the date of the application determined which Scheme applied and
the Scheme determined the rights and obligations which vested in the
parties. It was submitted that
section 6 of the 1998 Act did not apply to decisions subsequent to its
commencement because, first, there was a presumption that legislation did not
affect vested rights; and, second, there
was a presumption against legislation affecting pending proceedings. There was nothing in the 1998 Act to rebut
these presumptions, which were rebuttable.
What would have been required for that purpose would have been an
express statutory provision, or a strong implication. In this connection, counsel relied on Wilson v First County
Trust Limited (No.2) [2004] 1 AC 816.
Here the vested right was a right to have the application considered and
determined under the relevant Scheme. It
was submitted that this presumption governed the situation despite the making
of a decision by the first-named respondent after 2 October 2000, when section 6 of the 1998
Act had come into force. Counsel relied
particularly on the observations of Lord Rodger of Earlsferry in
paragraphs 186 to 188 and 193 to 197.
Turning to deal with the presumption in relation to pending proceedings,
counsel relied upon the same case and, in particular, the observations of Lord
Rodger of Earlsferry at paragraph 198.
He submitted that the proceedings here had been pending when
section 6 of the 1998 came into force;
there was nothing in that Act that rebutted the presumption relied
upon. Counsel also drew our attention to
the observations of Lord Nicholls of Birkenhead in
paragraphs 16 to 22 and those of Lord Hope of Craighead at
paragraph 98. Counsel also relied
on the remarks of Lord Scott of Foscote in paragraphs 153 and 158.
[30] Further support for the respondents' position was to be found
in In Re McKerr [2004] 1 WLR 807,
which had been concerned with the possible application of section 6(1) of
the 1998 Act and Article 2 of the Convention to a death which had occurred
in November 1982. The House of Lords had
held that the 1998 Act was not generally retrospective and that since there had
been no breach of an obligation before 2 October 2000, when the Act came into force,
there could be no continuing breach thereafter.
Counsel relied particularly on the observations of Lord Nicholls of Birkenhead in
paragraphs 15 to 22. Reliance was
also placed on R. (ex parte Wright) v
The Secretary of State for the Home
Department [2006] EWCA Civ 67 and particularly on the observations of
Ward L.J. in paragraphs 12 and 19 and 35 and 36; also the observations of Arden L.J. at
paragraph 51. Counsel emphasised
that the submissions he had made under his first proposition governed the whole
case. If they were sound, then the
reclaiming motion failed, since it was wholly based upon the application of
section 6 of the 1998 Act to the circumstances of the case. The remaining submissions that he was to make
were secondary.
[31] Counsel went on to elaborate his second main proposition, to
the effect that, on the assumption that the 1998 Act did have application, the
reclaimer's application for criminal injuries compensation did not fall within
the ambit of Articles 3, or 8 of the Convention or Article 1 of
Protocol 1 to it. It was recognised
that the concept of "ambit" was difficult.
It had been discussed in M. v The Secretary of State for Work and Pensions
[2006] 2 WLR 637. In particular, the
observations of Lord Nicholls of Birkenhead at
paragraphs 13 to 17 and of Lord Walker of Guestingthorpe at
paragraphs 57 to 60 and 83 were helpful.
It was necessary to look at the individual circumstances of each case
and such decisions of the European Court of Human Rights as might be in
point.
[32] Coming to the particular circumstances of the present case, it
was submitted that compensation for criminal injuries did not fall within the
ambit of either Articles 3 or 8 of the Convention. Counsel relied upon the decision in the case
of Stuart v The United Kingdom. While it
was accepted that that was a decision on admissibility only, it was nevertheless
a decision of the court, which thought that the application was manifestly
unfounded. It had to be stressed that,
in this decision, there could be no suggestion that the case was contaminated
by the misunderstanding which arose in the case of August v The United Kingdom
(Application No. 36505/02) four years later.
In Stuart v The United Kingdom the issue of whether
the Scheme was ex gratia or statutory
played no part in the reasoning of the court.
[33] Reverting to M. v The Secretary of State for Work and Pensions,
counsel drew attention to the observations of Lord Bingham of Cornhill in
paragraphs 3 to 5, concerned with the ambit of Article 8 of the
Convention; also those of Lord Walker of
Guestingthorpe in paragraphs 82 to 88 and of Lord Mance in
paragraph 157.
[34] Counsel submitted that the authorities referred to in
paragraphs 22 and 23 of the reclaimer's outline argument were not in
point. They involved State
responsibility for abuse or for preventing its continuance. The cases of Z and Others v The United
Kingdom, DP and JC v The United Kingdom and E v The
United Kingdom were of that nature.
Because of the material difference between the facts of those cases and
those of the present case, the decisions were of no assistance.
[35] Counsel next turned to consider the issue of the ambit of
Article 1 of Protocol 1. His
submission was that the reclaimer's application did not fall within that,
because she had no right to criminal injuries compensation, on account of the
effect of paragraph 7(b) of the 1996 Scheme, under which her claim had to
be considered. That meant that she had
no "possession" to which Article 1 of Protocol 1 could relate. In support of this submission counsel relied
on Van der Mussele v Belgium, which decided that
Article 1 of Protocol 1 applied to existing possessions, as appeared
from paragraph 48 of the judgment.
Here, quite simply, there were no relevant possessions. While it was recognised that a right to bring
a claim could be a possession, a right to bring a claim which was bound to
fail, as was the reclaimer's claim here, was not a possession. In that connection counsel relied on Roche v The United Kingdom (2006) 42 EHRR 30, particularly
paragraphs 127 to 131. The approach
of the European Court of Human Rights in relation to Article 1 of
Protocol 1 was simple; if there was
no possession, then the matter concerned did not fall within the ambit of that
article.
[36] The reclaimer had relied upon Stec v The United Kingdom. However it was necessary to notice what the
case had decided. It was that, if a
contracting State had in force legislation providing for the payment as of
right of a welfare benefit, whether conditional or not on the prior payment of
contributions, that legislation had to be regarded as generating a proprietary
interest falling within the ambit of Article 1 of Protocol 1 for
persons satisfying its requirements, as appeared from paragraphs 48 to 55 of
the decision of the Grand Chamber on admissibility. However, that decision had no application
outside the field of social security entitlements. Matthews
v The Ministry of Defence [2003] 1 AC 1163 recognised that an arguable case was a civil right, but where there
was a bar to that case, there was no civil right. Gustafson
v Sweden (1997) 25
E.H.R.R. 623 simply confirmed that an arguable case was a civil right.
[37] Counsel then proceeded to elaborate his third proposition,
that, in any event, any difference in treatment involved in the present case
did not fall within any recognised category of discrimination under
Article 14 of the Convention, since it did not relate to status or any other
personal characteristic. The scope and
operation of Article 14 of the Convention had been elucidated in R. (Carson) v The Secretary of State for Work and Pensions [2006] 1 AC 173 in
paragraph 10 of the judgment of Lord Hoffmann and in paragraphs 53
and 54 of that of Lord Walker of Guestingthorpe.
[38] In the present case there was no question of discrimination or
difference of treatment because of a personal characteristic; the difference in treatment was the
consequence of a time requirement, as regards the date when the relevant
offence had occurred. The difference in
treatment was related to whether certain criminal activity had occurred before 1 October 1979, or after
that date. The reclaimer was not seeking
to be treated like a "non same roof" victim;
only like a "same roof victim" when the injury was sustained after 1 October 1979. The only relevant comparator was another
"same roof victim" of a later offence.
Upon that view of the matter, there was no discrimination of the kind
struck at by Article 14. No status
or personal characteristic was involved.
For that reason also, the reclaiming motion should be refused.
[39] Counsel then turned to elaborate his fourth proposition, to the
effect that, if the difference in treatment of the reclaimer did fall within
the terms of Article 14, that did not amount to unlawful discrimination
because there was a rational justification for the difference in
treatment. The justification relied upon
by the respondents was stated in Answer 9 of the reclaiming print. In this connection, it was appropriate for
the court to look at all possible comparators, in particular, (1) "same roof
victims", where the offence occurred after 1 October 1979, and (2) "non
same roof victims", where the offence occurred before 1 October 1979. Counsel went on to refer to the Review of the
Criminal Injuries Compensation Scheme:
Report of an Interdepartmental Working Party, 1978 and the consultation
paper, Compensation for Victims of Violent Crime, 1999. It was also relevant to take into account the
contents of the Ministerial Statement of 23 July 1979, No.72 of process. The change made in 1979 had been prospective
only. By 1996 the status quo had been
retained because of that circumstance.
The rationality of the post-1979 Scheme had been the subject of decision
in R. v Criminal Injuries Compensation Board and Another, ex parte P. The Court of Appeal decided that the decision
in 1979 to introduce a revised Scheme with prospective effect for the victims
of offenders in the same household could not be called irrational. Reference was made in particular to the
observations of Peter Gibson L.J. at pages 863 to 864. The approach which the court should take to a
Ministerial Statement concerning policy was described in Wilson v First County
Trust Limited (No.2) at para. 51 by Lord Nicholls of Birkenhead. Looking at that and at the Ministerial
Statement of 23 July
1979, it was submitted that the justification for the change made
was self-evident. The 1996 Scheme had
simply preserved the prospective change effected in 1979. That was a normal and rational approach.
[40] Reverting to R. (Carson)
v Secretary of State for Work and
Pensions, in paras.14 to 17 Lord Hoffmann considered the nature of
discrimination. Much depended on the
nature of the difference in treatment.
There were essentially two categories of grounds of discrimination, first,
what might be called the "suspect categories", such as race, gender and
membership of a political party, and, second, discrimination based on the
general public interest, including social policy. The present case did not fall within the
first category of suspect grounds for discrimination. The justification for paragraph 7(b) of the
1996 Scheme had been general social policy.
Differences of treatment of that kind were very much a matter for
Government. Reliance was placed on the
observations of Lord Walker of Guestingthorpe in paragraphs 53 to 58 of his
judgment. The complaint here was that
the change in 1979 had been prospective, but there was nothing wrong with that,
as appeared from a number of authorities, including Regina (Hooper) v Secretary of State for Work and Pensions, which had involved the
removal of certain restrictions for the future, as appeared from paragraph 32
in the judgment of Lord Hoffman. It was
considered that the matter had been one for Parliament. Reliance was also placed on Stec v The United Kingdom, in particular on paragraphs 64 to 66. There was a wide margin of appreciation.
[41] Finally, counsel considered the issue of remedies. If the reclaimer were correct in her
contentions, the court could grant a declarator as sought in Statement III(i)
of the petition; reduction in terms of
Statement III(iii) could also be granted, which would have the result that the
case would be returned to the first-named respondent. The Secretary of State would thus have notice
that there was a defect in the 1996 Scheme.
However, it was submitted that it would be inappropriate to reduce
paragraph 7(b) of the Scheme and the associated words in paragraph 16 of the Scheme,
since these parts could not be excised without wider consequences for other
parts of the Scheme, for example paragraph 7(a). Difficulties would be created by granting
reduction as sought. The supposed
injustice could not be cured by merely reducing those parts of the Scheme
mentioned. There would have to be a
reconsideration of the whole Scheme.
Section 8(1) of the 1998 Act gave the court a very wide discretion as
regards the granting of a remedy.
Counsel also referred to section 6(6)(a) of that Act and section 11 of
the 1995 Act.
Submissions by senior counsel for the reclaimer
[42] Senior counsel adopted the submissions made by his junior. He said that he would deal with the four
propositions advanced on behalf of the respondents. He began by referring to Regina v Criminal
Injuries Compensation Board and Another ex parte P. In that case the Court of Appeal acknowledged
that, in relation to the 1979 Scheme established by exercise of the Royal
prerogative, judicial review would be available to ensure fair
distribution. The Home Secretary's
decision to continue the pre-1979 exclusion of claims under the "same roof"
rule was not, in the circumstances, irrational.
However, certain observations by members of the court diminished the
force of that decision. In particular, Neill
L.J. considered that the prerogative origin of a Scheme made the task of review
more difficult. However, the present
proceedings did not involve a challenge on the basis of irrationality. Senior counsel next relied upon Marcks v Belgium (1979) 2 EHRR 330, which highlighted the importance of the Convention, as appeared
from paragraph 41 of the judgment.
[43] Turning to the respondents' first proposition, senior counsel
drew attention to the terms of the 1995 Act, in particular, section 11, which
dealt with parliamentary control. It had
to be appreciated that the 1996 Scheme had been made by the Secretary of State,
not by Parliament. The draft of the Scheme
had had to have been approved by Parliament in advance of the making of a Scheme. In his submission, the action described in
section 11(6) did not amount to a "proposal for legislation" within the meaning
of section 6(6)(a) of the 1998 Act. In
terms of the 1995 Act, the legislation was of a secondary nature, effected by
the Secretary of State. What might be
called a "disapproved Scheme" would nevertheless be valid. If there were no negative resolution, the
legislation would be, in law, delegated legislation.
[44] It had been argued on behalf of the respondents that the 1998
Act was not in force when the petitioner's rights under the Scheme had vested
in her. Senior counsel contended that
the judicial decisions complained of had been made after the commencement of
the 1998 Act. That Act applied to acts
and omissions without qualification and authority and logic supported the view
that the rights of the reclaimer to compensation had vested at the date she
made her first application. Senior
counsel then referred to Wilson v First County Trust
Limited (No. 2). He endeavoured to
explain why the respondents' reliance upon what was said in that case
concerning the effect of the 1998 Act was flawed. The reclaimer's case under paragraph 7(b) of
the 1996 Scheme depended on the application of certain Convention provisions
implemented by the 1998 Act. So the
rights came into being on the creation of those rights by the commencement of
that Act. The case of C v The
Secretary of State for the Home Department [2003] E.W.H.C. 1295, relied
upon by the respondents, did not vouch the proposition set forth in paragraph
26 of their outline argument. The respondents
had also relied upon In re McKerr. However, senior counsel submitted that the
circumstances of that case did not vouch the proposition that a right had
vested in the reclaimer when her claim was first made. Likewise, Regina (ex parte Wright) v The Secretary of State for the Home Department was of no assistance
to the court.
[45] Senior counsel then went on to consider the respondents' second
proposition, to the effect that the reclaimer's application for criminal
injuries compensation did not fall within the ambit of Articles 3 or 8 of the
Convention and Article 1 of Protocol 1 to it.
In that connection reliance had been placed by the respondents on M v The
Secretary of State for Work and Pensions.
Senior counsel claimed that that case could be distinguished on its
facts. There had been but a tenuous link
with the private and family life of the claimant. In the present case, the provisions of
paragraph 7(b) of the 1996 Scheme had a serious impact upon the reclaimer's
private life. The abuse endured had had
the effect of destroying respect for her private life, yet the State had
deprived her of compensation. Senior
counsel said that he was able to accept much of what was said in paragraph 35
of the respondents' revised written submissions. The scope of Article 8 of the Convention,
however, could embrace what was discussed in Article 14. The Criminal Injuries Compensation Scheme was
promoting the private life of individuals.
However, the way in which that had been done was discriminatory in terms
of Article 14 upon the basis of the words "or other status", in the latter
Article.
[46] Senior counsel then went on to consider the impact of Article 1
of Protocol 1 to the Convention, conferring an entitlement to "the peaceful
enjoyment of his possessions". He was
able to agree with the contents of paragraph 51 of the respondents' revised
written submissions; however, he
submitted that paragraph 53 was wrong.
The Article under consideration applied to criminal injury compensation
payments. In this connection it was
necessary to note Stec v The United Kingdom, particularly what
was said in paragraph 48. Criminal
injuries compensation was a civil right.
What was said in paragraphs 55.1 and 55.3 of the respondents' revised
written submissions was true, but of no significance. Senior counsel went on to rely on Roche v The United Kingdom. However,
the present case bore more similarity to the circumstances of Stec v The United Kingdom than those of Roche v The United Kingdom. Senior counsel then proceeded to consider in
detail the circumstances of the latter case.
It could not be right to say, as had been contended by junior counsel
for the respondents, that because a person did not have an entitlement
therefore discrimination could not be examined.
In so far as there was a distinction between the two cases mentioned,
the approach in Stec v The United Kingdom was to be preferred.
Senior counsel then referred to Beshiri
and Others v Albania
(Application No. 7352/03). However, that
case had little to do with the present one.
It, along with Polacek v The Czech Republic (Application No.
38645/97) was concerned with the expropriation of property, not benefits. No wider principles arose from those two
authorities that were of relevance to this case.
[47] In paragraphs 58.1 to 58.5 of the revised written submissions
for the respondents, they had developed an argument based on the terms of
Protocol 12 to the Convention, although that Protocol had not been ratified by
the United Kingdom. It had been contended that, if the
reclaimer's submissions were correct, this Protocol would have been
otiose. He submitted that this applied
not just to those circumstances that fell within the ambit of Convention rights
but to any right set forth in law. The
inference sought to be made upon the basis of that Protocol was unwarranted.
[48] Senior counsel turned next to consider the third proposition of
the respondents, to the effect that, if one or more of the Articles of the
Convention relied on were engaged, the differences of treatment involved here
did not fall within any of the categories of discrimination prohibited by
Article 14, because they did not relate to status or any personal
characteristic. Paragraph 16 of the 1996
Scheme had been relied upon by the respondents.
That was erroneous. No criticism
of that paragraph had been made. It
contained proper safeguards. The
paragraph itself was not discriminatory.
Looking at the question of "status" in Article 14 of the Convention, it
was necessary to look for personal characteristics. A person who had been the victim of crime had
an immutable personal characteristic. The
status involved here, upon the basis of which there had been discrimination was
membership of the same household as the reclaimer's abusing father. In this connection senior counsel relied on Francis v The Secretary of State for Work and Pensions, which applied the
test in Kjeldsen v Denmark (1976) 1 EHRR 711.
[49] Senior counsel next elaborated his position in relation to the
respondents' fourth proposition, to the effect that, any difference in
treatment did not amount to unlawful discrimination, since there was a rational
justification for it. That alleged
justification was explained in paragraph 73 of the respondents' revised written
submissions. While sub-paragraphs (a)
and (b) might be correct, that did not justify maintenance of the
discrimination. In that connection
reliance was placed upon paragraph 9 of the Eighth Report of the Criminal
Injuries Compensation Board, which had been produced. In this connection senior counsel also made
reference to Marcks v Belgium at
paragraph 58.
[50] Finally, senior counsel turned to the matter of remedy. The remedies sought were set forth in
Statement III of the petition.
Declarator in terms of paragraph (i) was sought. Reduction of paragraph 7(b) and certain other
parts of paragraph 16 of the 1996 Scheme was sought in paragraph (ii). Reduction of the decision set out in the
letter dated 15 April
2002 was sought in paragraph (iii). The remedies sought were not challenged,
except that of reduction of the specified parts of the Scheme. If the court were persuaded that the
respondents' objection to that reduction was sound, the reclaimer's motion was
that the case should be sisted to enable the Secretary of State to consider his
position. However, the reclaimer's
primary motion was that the court should grant all the remedies craved. Paragraph 7(b) of the 1996 Scheme was
severable from the rest of it. There was
no suggestion of unacceptable adverse consequences of the reduction
proposed. As regards the funds available
for the purposes of criminal injuries compensation, it was understood that
there was not a fixed sum available.
[51] In the same connection senior counsel made certain further points. First, the objectionable exclusion applied to
persons at the heart of the 1996 Scheme, that is to say, victims of violent
crime who were specifically excluded.
Second, the reasons given for the exclusion were in relation to
evidential problems and that the wrongdoer might benefit from an award. These were practical reasons; they did not bear upon the worthiness of the
victim for an award of compensation.
Third, the removal of the restriction would not give rise to adverse
practical consequences. Thus there was
no coherent justification for the retention of the exclusion.
Submissions of senior counsel for the respondents
[52] Senior counsel adopted the submission made by junior
counsel. He also adhered to the revised
outline argument. He intended to deal
with six principal points: (1) the
domestic application of the Convention;
(2) the case of Regina (Bono and
Another) v Harlow District Council
[2002] 1 WLR 2475 and, in particular, the question whether there existed a
matter to which section 6 of the 1998 Act could apply; (3) the issue of retrospectivity; (4) the ambit of Articles 3 and 8 of the
Convention and Article 1 of Protocol 1 to it, for the purposes of Article
14; the submission would be that Article
14 was not engaged; (5) assuming that
Article 14 were engaged, the question of whether there was unlawful
discrimination on the ground specified;
and (6) general justification.
[53] Turning to the first of the foregoing points, senior counsel
observed that, in relation to the domestic application of the Convention, it
had to be borne in mind that what was involved was the fusing of two systems of
law: first, the application of the
Convention in a domestic context by virtue of the 1998 Act, the provisions of
which had force only so far as provided for by that Act; and, second, the case law of the European
Court of Human Rights which did not involve the doctrine of stare decisis. That case law involved the making of value
judgments on circumstances before the court at a particular time and also
featured decisions which, from time to time, were inconsistent, as between
themselves. Having regard to the
provisions of section 2 of the 1998 Act, it was necessary to search for trends
in European decision-making. In this
connection reference was made to Stec
v The United Kingdom and Roche v The United Kingdom. The
general approach to European case law was discussed by Lord Walker of
Guestingthorpe in M v The Secretary of State for Work and
Pensions. The surest guide to the
European law was what the court in Strasbourg actually
did. That was why the application in Stuart v The United Kingdom was important.
That involved a challenge to paragraph 7(b) of the 1996 Scheme, which
the court had held to be inadmissible.
The observations of Lord Hoffman in In
re McKerr were important in affirming that there were two bodies of law,
international and domestic. The
provisions of the Convention itself had no direct application in domestic
law. Effect had been given to them in
certain respects by virtue of the 1998 Act, but the source of the rights and
obligations concerned was that Act.
Reference was made to paragraphs 60 to 63 of Lord Hoffman's judgment. For these reasons, the date of 1 October 2000 was of
importance, being the date on which the 1998 Act came into force.
[54] Moving on to the second topic with which he intended to deal,
senior counsel considered Regina (Bono
and Another) v Harlow District
Council, where it was held that section 6(2)(b) of the 1998 Act afforded a
defence only where the primary legislation could not be read or given effect to
in a way which was compatible with Convention rights; where the primary legislation could be
interpreted compatibly with the Convention, incompatible subordinate
legislation made under it could not provide a lawful justification for acts
incompatible with Convention rights.
There was an error in paragraph 108 of the decision in Ghaidan v Godin-Mendoza. Senior
counsel agreed that it would be competent for paragraph 7(b) of the 1996 Scheme
to be quashed, if it were incompatible with the reclaimer's Convention rights. Before an issue of unlawfulness could arise
under section 6(1) of the 1998 Act, there had to be an "act" of a public
authority. Senior counsel conceded that
here there was such an act. He did not
rely to any extent on a defence under section 6(2) of the 1998 Act for the
reasons given in Regina (Bono and Another) v Harlow
District Council. It was not now
intended to rely on the terms of section 6(2)(a) of the 1998 Act. Furthermore, it was not now contended that
there was involved in the procedure for making a Scheme under the 1995 Act a
"proposal for legislation" within the meaning of section 6(6)(a) of the 1998
Act. It was accepted that the Secretary
of State, who made a Scheme, could be regarded as a person whose "act" fell
within the scope of section 6(1) of the 1998 Act. Thus, it would be competent for the court to
reduce the Scheme or part of it.
Ordinary rules would determine whether it was competent to grant partial
reduction. That would be so only if the
objectionable part was severable. There
were questions in this case as to whether paragraphs 7(b) and 16 of the 1996
Scheme were severable, since extending eligibility to some individuals might
mean withholding of it to others. There
was a finite sum of money voted by Parliament available for criminal injuries
compensation. That raised questions of
appropriateness under section 8(1) of the 1998 Act. If a declarator were pronounced, the Secretary
of State and Parliament would require to act.
The reclaimer would then be at the mercy of Parliament. The 1996 Scheme would require to be amended
before any benefit could be conferred upon the reclaimer, or there had to be
reduction of paragraph 7(b). There could
be, if appropriate, a declarator pronounced and there could be reduction of the
decision affecting the reclaimer, but beyond that the court should not go.
[55] Senior counsel next turned to deal with the issue of
retrospectivity. It had to be accepted
that the 1998 Act was not, in general, retrospective in effect. It came into effect on 2 October 2000. However, the meaning of retrospectivity was
complex, as appeared from the analysis in Wilson v First County
Trust Limited (No. 2). There were
three ways in which to analyse the matter:
(1) by reference to vested rights;
(2) by reference to pending actions;
and (3) by reference to an accrued cause of action. The second approach was the easiest to apply
in the present case. There was one
application made by the reclaimer in 1999.
There was a refusal of that application in the first instance before 2 October 2000. At that date an appeal was pending. Looking at the third possible approach to
analysis, that of the accrued cause of action, on one view, in the present
case, the cause of action had accrued when the injuries were inflicted; on any view, it had accrued by the date of
the application in 1999. On these
approaches, under reference to what was said in Wilson v First County
Trust Limited (No. 2), the 1998 Act had no application to the reclaimer's
position. Since that position was based
exclusively upon rights created by the 1998 Act, derived from the Convention, it
followed that the reclaimer's case must fail.
[56] Turning to the analysis of retrospectivity by reference to
vested rights, there was, perhaps, greater difficulty. The difficulty was, in the submission of the
respondents, that, since the reclaimer was never eligible for compensation,
there was therefore no vested right.
However, viewing the matter in another way, the reclaimer did have a
right to have her claim determined in accordance with the Scheme applicable to
it. The application was, of course, made
before 2 October 2000. Such applications could be categorised in
three ways, first, those in which the applicants were ineligible in terms of
the Scheme; second, those where the
applicants were eligible and qualified for compensation; and, third, those in which the applicants
were eligible but whose awards were withheld in terms of paragraph 13 of the
Scheme. However, all three categories
had this in common, that the applicants had a right to have their applications
determined in terms of the Scheme applicable to them. That could properly be described as a vested
right.
[57] The reclaimer contended that the coming into force of the 1998
Act on 2 October 2000 changed matters and conferred upon her a right to
compensation that she had not previously enjoyed and which others, whose
applications under the 1996 Scheme had been determined prior to the coming into
force of the 1998 Act, had not had.
Whatever analysis one adopted, the reclaimer's contention involved the
1998 Act being used to alter a pre-existing state of affairs. That was not how the Act had been held to
operate. In that connection senior
counsel relied on the observations of Lord Rodger of Earlsferry in Wilson v First County
Trust Limited (No. 2) in paragraphs 196 to 198, Lord Nicolls of Birkenhead in
paragraphs 20 to 22, Lord Hope of Craighead in paragraph 98 and Lord Scott of Foscote
in paragraph 153. One could see a
practical application of this approach to the operation of the 1998 Act in Wright v The Secretary of State for the Home Department, where the
"continuing failure" argument had been deployed. The court had rejected the appellant's
argument in paragraphs 35 to 37. An
existing state of affairs had not been altered by the coming into force of the
1998 Act.
[58] Senior counsel went on to rely in the same connection on A v Hoare
[2006] EWCA Civ 395. This and the
associated cases were concerned with the interpretation of a six year
limitation period applicable in English law in respect of intentionally
inflicted injuries. In all of these
cases, the relevant events had occurred prior to 2 October 2000.
Damages actions were commenced after that date. The Court of Appeal had held that the 1998
Act did not have retrospective effect in the sense that it did not
retrospectively confer upon a claimant a cause of action which he would not
otherwise have had, as appeared from paragraph 47 of the judgment of the court.
[59] Senior counsel next proceeded to consider the fourth topic to
be raised by him, the ambit of Articles 3 and 8 of the Convention and Article 1
of Protocol 1 thereto, in relation to Article 14. His arguments under this head were presented
as a secondary submission, since, if he were correct in relation to
retrospectivity, that would be an end of the case. It was a matter of agreement that Article 14
did not have independent force; it was
dependent upon a matter coming within the ambit of a substantive Article. The concept of "ambit" was a loose term; the jurisprudence indicated that
decision-making in relation to ambit was pregnant with the making of value
judgments. The leading case was M v The
Secretary of State for Work and Pensions.
It was clear from that case that a tenuous link was insufficient; that a threshold or proximity test applied,
raising the question of whether the situation under consideration was
sufficiently close to one of the core values of a substantive Article to engage
Article 14; that would depend on
circumstances, on the nature of the rights guaranteed and the sensitivity of
the issues; the correct approach was to
be guided by Strasbourg case law.
[60] The conclusion to be drawn from all of this was that, in
determining on which side of the Roche/Stec line this case fell, it was on the Roche side. One was confirmed in that by looking at the
fate of the application in Stuart v The United Kingdom, a decision directly
in point. The cases of Roche v The United Kingdom and Stec
v The United Kingdom could not be
reconciled.
[61] Beshiri and Others v Albania
(Application No. 7352/03) was instructive, particularly what was said in
paragraphs 75 to 82. One either had a
possession or one did not. Where the
proprietary interest was in the nature of a claim, it could be regarded as an
asset only where it had a sufficient basis in national law. If there was no asset, then Article 14 did
not apply. Here, the reclaimer had no stateable
case in support of her claim, so there was no Article 1 of Protocol 1 right.
[62] The threshold test, that the eligibility criteria in domestic
law had to be met to enable a possession to be recognised in relation to
Article 1 of Protocol 1 and Article 14, could be seen in operation in Ghaidan v Godin-Mendoza and M v The Secretary of State for Work and Pensions. In each of these cases the House of Lords was
considering statutory provisions which operated differently in relation to
homosexual couples. In Ghaidan v Godin-Mendoza it had been conceded that the situation was within
the ambit of Article 8, which resulted in section 3 of the 1998 Act being
applied to construe a spouse as including an homosexual as much as an
heterosexual partner. However, in M v The
Secretary of State for Work and Pensions the provision applied differently
as between the different couples, but it had been decided that there was no
breach of human rights. In the present
case, there was no reason why the approach taken in Stuart v The United Kingdom,
which was in point, should not be followed.
Such decisions were value-driven, which was why it was important to see
how the European Court of Human Rights themselves had treated a particular
matter.
[63] Senior counsel then moved on to deal with the fifth topic in
his submissions; upon the assumption
that Article 14 could have application, the question was whether there was
discrimination on a ground specified in Article 14. It was submitted that there was not, because
the difference in treatment was based not only on the "same roof" rule, but
also on considerations of time. The
comparator was not a non-family victim, but one to whom the "same roof" rule
applied where the criminal injury had been sustained on or after 1 October 1979. However, because of the terms of paragraph 16
of the 1996 Scheme, there would still have been a difference in treatment
between them. That suggested that the
comparator was not a non-family member abused at the same time as the
reclaimer, but a person who was a victim living under the same roof as the
offender, where the abuse occurred on or after 1 October 1979. Thus the important point of distinction was
not status, but the date at which the abuse had occurred.
[64] In connection with this part of his argument, senior counsel
relied on Regina (Parson) v Secretary of State for Work and Pensions
[2006] 1 AC 173, particularly the observations of Lord Nicolls of Birkenhead
in paragraph 3, and Lord Walker of Guestingthorpe in paragraphs 53 to 58 and 61
to 63. The real issue in the case was
why the complainants had been treated as they had been. The answer was that, on 1 October 1979, on an
experimental basis, the applicable Scheme was amended to include "same roof"
rule applicants, subject to certain conditions, which were now embodied in
paragraph 16 of the 1996 Scheme. That
change had been made prospective only.
On the basis of consistency, successive Schemes, as they had been changed,
had been changed prospectively. Thus,
the reason for the exclusion of the reclaimer's claim was that the events upon
which it was founded occurred before 1 October 1979;
like persons had never had a right to claim. Accordingly the same result was reached by
that approach as by the comparator test;
the basis for the distinction was time, not status.
[65] Finally, senior counsel dealt with the topic of justification,
upon the assumption that there had been relevant Article 14
discrimination. In this connection Regina (Carson) v The Secretary of
State for Work and Pensions was again of assistance. In paragraph 3, Lord Nicolls of Birkenhead indicated
that the court's scrutiny might best be directed at considering whether the
differentiation has a legitimate aim and whether the means chosen to achieve
the aim are appropriate and not disproportionate in their adverse impact. The degree of scrutiny necessary and the
cogency of the justification depended on the nature of the rights in question
and the sensitivity of the issue. That
matter was dealt with by Lord Walker of Guestingthorpe in paragraphs 55 and
57. The onus was on the respondents to
demonstrate the justification.
Consideration had been given to the amount of evidence required in such
a situation and to the use of parliamentary materials. In that connection the observations of Lord
Nicolls of Birkenhead in Wilson v First County
Trust Limited (No. 2) in paragraphs 61 to 63 and 67 were helpful. If the purpose of the statutory provision was
self-evident, it was not necessary to examine background material. What was important was the underlying social
purpose sought to be achieved.
[66] The retention of paragraph 7(b) in the 1996 Scheme was plainly
justified on the ground of (1) consistency;
(2) the fact that changes are normally prospective; and (3) the need for a proper allocation of a
limited budget.
[67] The observations of Evans, L.J. at page 858 in Regina v Criminal
Injuries Compensation Board ex parte PG had been criticised by the
reclaimer. However, the reasoning given
there showed that the points made in justification of paragraph 7(b) of the
1996 Scheme were sound. In the case law
of the European Court of Human Rights, prospectivity in legislation was
permitted. In that connection reference
was made to paragraphs 64 to 67 in Stec v
The United Kingdom. The test there stated was whether the
justifying rationale was "manifestly unreasonable"; in the domestic context the test was the
narrower one of rationality. In any
event the justification advanced for prospective reform in the present context
was sound.
The decision
[68] In this petition for judicial review, the reclaimer seeks the
remedies of (i) declarator that the terms of paragraph 7(b) of the Criminal
Injuries Compensation Scheme 1996 are incompatible with her rights under both
Article 3 and Article 8 taken with Article 14 and Article 1 of Protocol 1 taken
with Article 14 of the Convention; (ii)
reduction of paragraph 7(b) and the second to seventeenth words of paragraph 16
of the 1996 Scheme; and (iii) reduction
of the decision set out in the letter dated 15 April 2002. The formulation of those remedies and, in
particular, the terms of the declarator sought, in association with the
averments made by the reclaimer and her pleas in law, make it abundantly clear
that her challenge to the terms of paragraph 7(b) of the 1996 Scheme is based
exclusively upon those parts of the Convention mentioned in the terms of the
declarator sought.
[69] In our opinion, it is important to acknowledge that the
Convention is not itself part of domestic law.
As Lord Hoffman put it in In re
McKerr in paragraph 63:
"That
proposition has been in no way altered or amended by the 1998 Act. Although people sometimes speak of the
Convention having been incorporated into domestic law, that is a misleading
metaphor. What the Act has done is to
create domestic rights expressed in the same terms as those contained in the
Convention. But they are domestic
rights, not international rights. Their
source is the statute, not the Convention.
They are available against specific public authorities, not the United
Kingdom as a State. And their meaning and application is a matter
for domestic courts, not the court in Strasbourg."
So, in a case such as this, where
the reclaimer's case is exclusively based upon domestic rights derived from the
Convention, but created by the provisions of the 1998 Act, the question of
whether that Act has application to the relevant circumstances of the case is
crucial.
[70] It is, of course, acknowledged that the criminal acts founded
upon by the reclaimer occurred prior to 1 October 1979.
Her application for criminal injuries compensation was dated 11 October 1999 and was
received by the Criminal Injuries Compensation Authority on 13 October 1999. The application was initially rejected by
letter, dated 8 November
1999, upon the basis of the effect of paragraph 7(b) of the 1996
Scheme. Thereafter the reclaimer
requested a review of that determination.
In terms of the letter dated 27 August 2001, the Authority advised the
reclaimer that, as a consequence of the terms of paragraph 7(b) of the 1996
Scheme no award of compensation could be made to her. On or about 1 November 2001, the reclaimer
appealed against that determination to the first-named respondent. On 15 April 2002, the first-named respondent issued the decision
letter of that date, now sought to be reduced, in which it dismissed her
appeal. Once again, the reason for that
decision was the terms of the 1996 Scheme referred to. Against that background the principal question
for us is how the terms of the 1998 Act, which came into effect on 2 October 2000 upon which
the reclaimer's case depends, relate to the facts of the reclaimer's case.
[71] The impact of the coming into force of the 1998 Act upon events
and transactions that had been taking place before that date and legal
proceedings in progress on it was the subject of consideration in the House of
Lords in Wilson v First County
Trust Limited (No. 2). In paragraph
186 Lord Rodger of Earlsferry observed:
"At common
law there is a presumption that a statute does not have 'retrospective'
effect. The statement in Maxwell on Interpretation of Statutes,
12th edition, page 215 is frequently quoted:
'Upon the
presumption that the legislature does not intend what is unjust rests the
leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases
or on facts which come into existence after the statutes were passed unless a
retrospective effect is clearly intended.
It is a fundamental rule of English law that no statute shall be
construed to have a retrospective operation unless such a construction appears
very clearly in the terms of the Act, or arises by necessary and distinct
implication.'
The very
generality of this statement rather obscures the fact that it uses the term
'retrospective' to describe a range of different effects, some more and some
less extreme. It is therefore important
to identify what it is about any particular provision that is said to be 'retrospective'."
[72] Thereafter his Lordship embarked upon an elaborate analysis of
the different facets of retrospectivity and the manner in which the presumption
to which he had referred operated. In
paragraph 193 he dealt with the nature and limitations of what has come to be
recognised as a presumption against interference with vested rights. He puts the matter in this way:
"Often,
however, a sudden change in existing rights would be so unfair to certain
individuals or businesses in their particular predicament that it is to be
presumed that Parliament did not intend the new legislation to affect them in
that respect. If undue weight is not
given to his use of the term 'retrospective', Wright J. gives a strong
statement of the presumption in In re
Athlumney; ex parte Wilson [1898] 2 QB 547, 551 to 552: 'Perhaps no rule of construction is more
firmly established than this - that a retrospective operation is not to be
given to a statute so as to impair an existing right or obligation, otherwise
than as regards matter of procedure, unless that effect cannot be avoided
without doing violence to the language of the enactment.'".
His Lordship went on in paragraph
196 and 197 to consider exactly what is meant by "vested rights" for the
purpose of the presumption. There he
observed:
"The courts
have tried, without conspicuous success, to define what is meant by 'vested
rights' for this purpose. Although it
concerned a statutory rule resembling section 6(1)(c) of the Interpretation Act
1978, the decision of the Privy Council in Abbott
v Minister for Lands [1895] AC 425 is often regarded as a starting point for considering this point. There Lord Herschell L.C. indicated, at page
431, that, to convert a mere right existing in members of the community or any
class of them into an accrued or vested right to which the presumption applies,
the particular beneficiary of the right must have done something to avail
himself of it before the law is changed."
His Lordship goes on to observe
that despite subsequent attempts at clarification, there remains a level of
uncertainty as to what is meant by vested rights for this purpose.
[73] Lord Rodger of Earlsferry, in paragraph 198, proceeded to
consider a further aspect of the presumption against retrospectivity, in
relation to pending proceedings. There
he said this:
"The
authorities refer to a further presumption, that legislation does not apply to
actions which are pending at the time when it comes into force unless the
language of the legislation compels the conclusion that Parliament intended
that it should. A well known statement
of this rule of construction is to be found in the judgment of Sir George
Jessel M.R. in In re Joseph Suche &
Company Limited (1875) 1 Ch. D. 48, 50 where he referred to 'a general rule
that when the legislature alters the rights of parties by taking away or
conferring any right of action, its enactments, unless in express terms they
apply to pending actions do not affect them'.
In Zainal bin Hashim v The Government of Malaysia [1980] AC 734, 742 the Board deliberately modified this rule and slightly reduced
its force 'for pending actions to be affected by retrospective legislation, the
language of the enactment must be such that no other conclusion is possible
than that that was the intention of the legislature'".
[74] In the same case Lord Nicolls of Birkenhead grappled
with the same problems. Observing in
paragraph 19 that the established presumptions were vague and imprecise, he
went on:
"As Lord
Mustill pointed out in L'Office Cherifien
des Phosphates v Yamashita-Shinnihon Steamship
Company Limited [1994] 1 A.C. 486, 524 to 525, the subject matter of
statutes is so varied that these generalised maxims are not a reliable
guide. As always therefore the
underlying rationale should be sought.
This was well identified by Staughton L.J. in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712, 724: 'the true principle is that Parliament is
presumed not to have intended to alter the law applicable to past events and
transactions in a manner which is unfair to those concerned in them, unless a
contrary intention appears. It is not
simply a question of classifying an enactment as retrospective or not
retrospective. Rather it may well be a
matter of degree - the greater the unfairness, the more it is to be expected
that Parliament will make it clear if that is intended'. Thus the appropriate approach is to identify
the intention of Parliament in respect of the relevant statutory provision in
accordance with the statement of principle.
Applying this approach to the Human
Rights Act 1998, I agree with Mummery L.J. in Wainwright v Home Office
[2002] QB 1334, 1352, para. 61 that in general the principle of
interpretation set out in section 3(1) does not apply to causes of action
accruing before the section came into force.
The principle does not apply because to apply it in such cases, and
thereby change the interpretation and effect of existing legislation, might
well produce an unfair result for one party or the other. The Human Rights Act was not intended to have
this effect."
Similar views were expressed by
Lord Hope of Craighead in paragraph 98 and Lord Scott of Foscote in paragraph
153.
[75] The House of Lords had again to consider the issue of
retrospectivity in relation to the 1998 Act in In re McKerr, where it held that the Convention was not part of
domestic law, save in so far as it was incorporated into the 1998 Act, and had
not been part of domestic law as so incorporated before the Act had come into
force on 2 October 2000; and that the 1998
Act was not generally retrospective.
[76] A recent reiteration of this approach is to be found in A v Hoare. In paragraph 47 in the judgment of the
court, delivered by Sir Anthony Clarke M.R. it was said:
"It is
common ground that the HRA does not have retrospective effect in the sense that
it does not retrospectively confer upon a claimant a cause of action which he
would not otherwise have had. There is
ample authority for this proposition:
see e.g. Wilson v First County
Trust Limited (No. 2) [2004] 1 AC 816."
[77] In the submissions made to us on this aspect of the matter, the
respondents founded upon the presumption that the 1998 Act did not operate
retrospectively upon (1) vested rights;
(2) pending actions; and (3)
accrued causes of action. We have some
difficulty in accepting the applicability of a presumption in relation to
vested rights in the present context in which it is quite evident that, because
of the terms of paragraph 7(b) of the 1996 Scheme, the reclaimer had no right
to criminal injuries compensation, prior to the coming into force of the 1998
Act. Likewise, we have difficulty in envisaging
the operation of any presumption affecting an accrued cause of action, where,
for the reason just explained, the reclaimer had no such cause of action. However, in that connection we consider that
the passage which we have quoted from A v
Hoare is pertinent. We have insuperable difficulty in seeing how
the 1998 Act could in any circumstances have retrospective effect, in the sense
of conferring upon a claimant a cause of action which that claimant would not
otherwise have had. It is precisely that
for which the reclaimer contends in this case.
However, more particularly, we are quite satisfied that the presumption
that legislation does not affect pending proceedings, described by Lord Rodger
of Earlsferry in paragraph 198 in Wilson v
First County Trust Limited (No. 2),
does operate in the circumstances of this case.
There is nothing in the 1998 Act to demonstrate that Parliament intended
that this presumption should not operate.
In the factual context with which we are concerned in the present case,
namely the making of a claim for criminal injuries compensation by the
reclaimer on 11 October 1999, prior to the coming into force of the 1998
Act on 2 October 2000, and its processing thereafter, we are quite satisfied
that the presumption does operate. There
is nothing in the Act itself to rebut it.
Our conclusion therefore is that the 1998 Act has no application to the
reclaimer's case. In view of her
exclusive reliance in this petition upon rights in domestic law, based upon the
Convention, but created by the 1998 Act, the result is that the petition must
be refused.
[78] While what we have just said is sufficient for the
determination of this case, out of deference to the arguments which were
addressed to us, we will express our opinion on certain of the other matters
which were the subject of submission. In
this connection we deal firstly with the submission of the respondents to the
effect that the reclaimer's application for criminal injuries compensation and
the subject-matter of the basis of it did not fall within the ambit of Articles
3 or 8 of the Convention, or Article 1 of Protocol 1 to it. The difficult concept of the "ambit" of an
Article of the Convention was the subject of consideration in M v The
Secretary of State for Work and Pensions.
At paragraph 13 and the following paragraphs Lord Nicolls of Birkenhead said this:
"13 The extended boundary identified in the
Strasbourg jurisprudence is that, for Article 14 to be engaged, the impugned
conduct must be within the 'ambit' of a substantive Convention right. This term does not greatly assist. In this context 'ambit' is a loose
expression, which can itself be interpreted widely or narrowly. It is not a self-defining expression, it is
not a legal term of art. Of itself it
gives no guidance on how the 'ambit' of a Convention Article is to be
identified. The same is true of
comparable expressions such as 'scope' and the need for the impugned measure to
be 'linked' to the exercise of a guaranteed right.
14 The approach of the ECt HR is to apply
these expressions flexibly. Although
each of them is capable of extremely wide application, the Strasbourg
jurisprudence lends no support to the suggestion that any link however tenuous,
will suffice. Rather, the approach to be
distilled from the Strasbourg jurisprudence is that the more seriously and
directly the discriminatory provision or conduct impinges upon the values
underlying the particular substantive Article, the more readily it will be
regarded as within the ambit of the Article;
and vice versa. In other words,
the ECt HR makes in each case what in English law is often called a 'value
judgment'. ...
15 In one respect the ECt HR jurisprudence
has been more specific. Article 14 is
engaged whenever the subject-matter of the disadvantage comprises one of the
ways a State gives effect to a Convention right ('one of the modalities of the
exercise of a right guaranteed'). For
instance, Article 8 does not require a State to grant a parental leave
allowance. But if a State chooses to
grant a parental leave allowance it thereby demonstrates its respect for family
life. The allowance is intended to
promote family life. Accordingly, the
allowance comes within the scope of Article 8, and Article 14 read with Article
8 is engaged: Petrovic v Austria (2001)
33 EHRR 307, paras 27 to 30."
[79] Similar views were expressed by Lord Walker of Guestingthorpe
at paragraphs 57 to 60. In paragraph 60,
he said this:
"It was not
an issue which this House had to resolve in Ghaidan. It is a live issue in this appeal. Though there is no simple bright-line test,
general guidance can be derived from the Strasbourg case law,
and it does not in my opinion lead to the conclusion that even a tenuous link
is sufficient. Nor does it lead to the
conclusion that precisely the same sort of approach is appropriate, whatever
substantive Article is in point."
[80] In Stuart v The United Kingdom, an admissibility
decision, the applicant was in a situation identical with that of the reclaimer
in this case, in the sense that she was denied criminal injuries compensation
upon the basis of the "same roof" rule.
She sought to attack that rule upon the basis of Articles 3, 8, 13 and
14 of the Convention.
[81] The decision of the European Court of Human Rights was, of
course, a decision as to the admissibility of the application and must be seen
as such. However, the court dealt with
the same issues as are involved in the determination of the submissions under
consideration in the present case. Also,
it was recognised in the debate before us that the decision in that case was
not flawed by any misunderstanding as to whether the Scheme in question was an ex gratia Scheme or a statutory
one. Accordingly, in our opinion, the
decision is of assistance. At page 3 of
the decision, the court noted that sexual abuse was regarded most seriously by
Scottish law and was subject to severe maximum penalties. It found that the State's positive obligation
under Articles 3 and 8 could not be interpreted as requiring the State to
provide compensation to the victims of ill-treatment administered by private
individuals. At page 4 of the decision
the court said:
"As for the
complaint under Articles 3 and 8 taken in conjunction with Articles 13 and 14,
the court refers to its above-mentioned finding that the scope of the positive
obligation under Articles 3 and 8 does not extend to the payment by the State
of compensation for injuries caused by the criminal acts of private
persons. It follows that the fact about
which the applicant complains, namely the denial of compensation, does not fall
within the scope of Articles 3 or 8 and that Articles 13 and 14 are not,
therefore, applicable."
While recognising the character of
this decision as being a decision on admissibility only and while recognising
that the concept of "ambit" is not expressly referred to by the court, which
talks rather of the "scope of the positive obligation under Articles 3 and 8"
we see no reason why we should adopt a different view to that inherent in that
decision. In M v The Secretary of State
for Work and Pensions at paragraph 4, Lord Bingham of Cornhill said:
"It is not
difficult, when considering any provision of the Convention, including Article
8 and Article 1 of the First Protocol ... , to identify the core values which the
provision is intended to protect. But
the further a situation is removed from one infringing those core values, the
weaker the connection becomes, until a point is reached when there is no
meaningful connection at all. At the
inner extremity a situation may properly be said to fall within the ambit or
scope of the right, nebulous though those expressions necessarily are. At the other extremity, it may not. There is no sharp line of demarcation between
the two. An exercise of judgment is
called for. Like my noble and learned
friend in paragraph 60 of this opinion, I cannot accept that even a tenuous
link is enough. That would be a recipe
for artificiality and legalistic ingenuity of an unacceptable kind."
In paragraph 87 of the same case,
Lord Walker of Guestingthorpe, dealing with the legislation under consideration
in that case said:
"To that
extent legislation is intended, in a general sort of way, to be a positive
measure promoting family life (or, it might be more accurate to say, limiting
the damage inevitably caused by the breakdown of relationships between couples
who have had children). But I do not
regard this as having more than a tenuous link with respect for family life."
[82] Looking at the provisions of Article 3 of the Convention, which
is of course headed "Prohibition of torture", it is provided that no one shall
be subjected to torture or to inhuman or degrading treatment or
punishment. As we would understand that
Article, its core content reflects a concern with the infliction of torture, or
inhuman or degrading treatment or punishment, in many cases, but not
exclusively, by organs of authority. We
do not see the commission of a crime involving the achievement of sexual
gratification by an individual as readily coming within the ambit of that
Article. Of course, where torture or
inhuman or degrading treatment or punishment is inflicted by an organ of
authority in a State, that will, frequently, also involve the commission of a
breach of the criminal law by those persons actually responsible, which may
fall within the ambit of Article 3 of the Convention. But, in any event, as we see it, the 1996
Scheme is distinct and separate from the core content of Article 3 of the
Convention, in respect that its purpose was to provide compensation in a
financial sense to certain victims of criminal conduct. Thus, looking at the matter for ourselves, we
are unable to hold that the subject-matter of the reclaimer's case falls within
the ambit of Article 3.
[83] Looking at the provisions of Article 8, which is entitled
"Right to respect for private and family life" and which provides that everyone
has the right to such respect for his private and family life, his home and his
correspondence, it would appear that the core content of the Article is the
creation of protection for private and family life against factors which would
assail the values protected, emanating from outside the family. That, of course, is not what was involved in
the origins of this case. Furthermore,
the 1996 Scheme was a means of providing financial compensation in certain
circumstances to victims of criminal activity, a mechanism which is itself not
directly concerned with the maintenance of the core values of Article 8. We cannot regard that Scheme as having more
than, at best, a tenuous link with those core values.
[84] We turn next to consider the third provision of the Convention
founded upon by the reclaimer here, Article 1 of Protocol 1. That Article is, of course, concerned with
the protection of property. So far as
relevant, it 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 and subject to the conditions
provided for by law and by the general principles of international law."
Of course, everything depends on
what is meant by a "possession", for the purposes of this Article. The effect of the Article was the subject of
consideration by the European Court of Human Rights in Van Der Mussele v Belgium, where in
paragraph 48 of the judgment of the court it was said:
"The text
set out above is limited to enshrining the right of everyone to the peaceful enjoyment
of 'his' possessions; it thus applies
only to existing possessions."
In Roche v The United Kingdom,
the European Court of Human Rights was considering, in the broadest terms, a
claim at the instance of a British serviceman who participated in tests at the
Portondown Barracks and who was subsequently diagnosed with medical conditions
which, he suspected, were linked to those tests. In the judgment of the court consideration
was given to the meaning of "possession" in Article 1 of Protocol 1. In paragraph 129 on page 637 of the judgment,
the court said:
"The Court
recalls that a proprietary interest in the nature of a claim can only be
regarded as a possession where it has a sufficient basis in national law,
including settled case law of the domestic courts confirming it. The applicant argued that he had a
'possession' on the same grounds as he maintained that he had a 'civil right'
within the meaning of Article 6(1). For
the reasons outlined under Article 6(1) above, the court considers that there
was no basis in domestic law for any such claim. The applicant had no 'possession' within the
meaning of Article 1 of Protocol No. 1 and the guarantees of that provision do
not therefore apply."
Thus, following that dictum, the question must be whether, in
the present context, the reclaimer had a possession which could be protected by
Article 1 of Protocol 1. We have no
hesitation in concluding that she did not.
While the reclaimer asserted a claim to criminal injuries compensation,
because of the provisions of paragraph 7(b) of the 1996 Scheme, that claim must
be seen as having had no basis whatsoever in national law. It was, therefore, a claim that was doomed
from the outset to failure under national law.
In these circumstances following the approach of the court just quoted,
we would conclude that the reclaimer had no possession to be protected under
Article 1 of Protocol 1. We should
make clear that, following the submissions of the respondents, we consider that
there is nothing in Stec v The United Kingdom which undermines the
conclusion which we have just stated. We
see the present situation, where paragraph 7(b) of the 1996 Scheme has
prevented the reclaimer from asserting any stateable claim as comparable with
the kind of provision which was the subject of consideration by the House of
Lords in Matthews v The Ministry of Defence. There is no question here of there being a
procedural bar; there simply was no
right. In all these circumstances, we
conclude that, even if the basis of our decision were wrong and that the 1998
Act did have application to the circumstances of this case, the reclaimer's
petition would have failed upon the basis that there were no "rights and
freedoms set forth in the Convention", within the meaning of Article 14, to
which the reclaimer's allegation of discrimination could have attached.
[85] We turn next to consider whether, assuming that the submissions
of the reclaimer, which we have rejected, were well-founded, the difference of
treatment under paragraph 7(b) of the 1996 Scheme, of which she complains was
within one of the categories of discrimination prohibited by Article 14 of the
Convention. The grounds referred to
there are:
"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."
The contention made here was that
there was discrimination on the basis of "other status". It is that contention that we now
examine. In approaching this matter we
have regard to what was said in Regina (Carson) v The Secretary of
State for Work and Pensions, particularly by Lord Hoffman, in paragraph 10,
and Lord Walker of Guestingthorpe in paragraphs 53 to 58. The conclusion which we reach on this aspect
of the case is that the circumstances here do not justify the conclusion that
there might have been discrimination on the basis of "other status". It is quite plain, in our opinion, that the
effect of paragraph 7(b) of the 1996 Scheme is to exclude from compensation
cases 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. Comparing such persons with persons who were
living together with the assailant at the time as members of the same family
where the criminal injury was sustained after 1 October 1979, it is evident that the
distinction in treatment is based solely upon the time when the criminal injury
was sustained. In our view the proper
comparator is another person who was the victim in a "same roof"
situation. Indeed we accept the
submission of the respondents that the only proper comparator is other "same
roof" victims. Thus the difference of
treatment involved here cannot be seen as falling within any of the kinds of
discrimination against which Article 14 is a protection. Accordingly, had it been necessary to do so,
we would have held on this ground also that the reclaimer's petition would have
failed.
[86] Arguments were addressed to us upon the assumption that the
difference in treatment accorded to the reclaimer did fall within the scope of
Article 14. It was contended that there
existed, on that basis, a justification for the discrimination involved. We have reached the conclusion that we cannot
properly form any view upon that matter on the basis of the somewhat limited material
which is available to us in this petition.
Accordingly, we offer no opinion on it.
[87] For all of these reasons, we consider that the decision of the
Lord Ordinary should be affirmed and the reclaiming motion refused.
