Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 115

 

P243/15

OPINION OF LORD BURNS

In the petition

MA

Petitioner;

for

Judicial Review of the withholding of criminal injuries compensation to the petitioner on the basis that the injuries suffered by her were inflicted by a family member of the same household before 1 October 1979

 

Act:  Mitchell QC, et Irvine advocate;  Drummond Miller LLP

Alt::  Webster, advocate;  Office of the Advocate General

29 July 2016

[1]        On 7 November 2012 the petitioner submitted a claim for criminal injuries compensation in respect of assaults upon her in 1968 and 1973 by her mother of which her mother had been convicted.  The petitioner was 3 months old at the date of the first assault and 5 years old at the date of the second.

[2]        Because of the date of her application her claim fell to be considered under the Criminal Injuries Compensation Scheme 2008 (“the 2008 Scheme”).  Paragraph 7 thereof provides that 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 same time as members of the same family.”

 

[3]        By letter dated 10 March 2014 the Criminal Injuries Compensation Authority refused the petitioner’s claim because of the terms of that paragraph explaining that the authority was precluded from making any award of compensation and had no discretion in the matter.

[4]        The petitioner raised this petition in which she seeks a number of remedies set out in paragraph 4.  Those are, first, declarator that the claims officer who decided her claim acted unlawfully in terms of the Human Rights Act 1998, section 6(1) by withholding compensation on the basis of paragraph 7(b).  Secondly, she seeks reduction of that decision.  Thirdly, she seeks declarator that the Secretary of State acted unlawfully by including paragraph 7(b) within the 2008 Scheme.  Fourthly, she seeks reduction of paragraph 7(b) and the expenses of the petition.

[5]        The exclusion of cases in which criminal injury was sustained in circumstances where the victim and assailant were living together at the time as members of the same family has existed since the first Criminal Injuries Compensation Scheme in 1964.  That was a non‑statutory scheme providing for the making of ex gratia payments to certain victims of crime.

[6]        In 1995 the Criminal Injuries Compensation Act 1995 was enacted and since that date all schemes have been made pursuant to that Act.  A draft of the scheme requires to be laid before Parliament and the Secretary of State cannot make the scheme unless the draft is approved by resolution of each house.  The first statutory scheme was made in 1996 and a number have been made since including that of 2008.

[7]        In the report of the working party on compensation for victims of crimes of violence dated 20 December 1960 the authors reported to the Secretary of State for the Home Department, having been asked to examine the practical problems involved in a scheme for the compensation of the victims of crimes of violence.  At paragraph 38 the issue of a special relationship between the offender and the victim was addressed.  The report stated:

“there may be many ‘domestic’ crimes including assaults on wives or members of her family or household, for which the payment of compensation might be thought inappropriate.”

 

It was doubted whether it would be practicable to establish a boundary in such cases which would not give rise to anomalies and difficulties.  However, the White Paper subsequently presented to Parliament by the Secretary of State for the Home Department and the Secretary of State for Scotland in March 1964 set out the arrangements which the Government proposed to make for compensating victims of crimes of violence.  It was thought best to start with a flexible scheme which could be altered in the light of experience.  At paragraph 17 it is stated:

“offences committed against a member of the offender’s household living with him at the time will be excluded altogether, in view of the difficulty in establishing the facts and ensuring that the compensation does not benefit the offender.”

 

That rationale for the inclusion of what became known as the “same roof rule” persisted until, in its eighth report dated 23 September 1972, the Board recommended that the same roof rule should be reconsidered when the scheme is reviewed.  The two bases for it are criticised at paragraph 9 of that report.  It was pointed out that when there has been a criminal trial the facts are often established beyond doubt and where no criminal proceedings have taken place the Board would scrutinise the application with great care and would bear in mind the possibility of collusion.  In relation to the possibility that the offender might benefit from the award to the victim it was pointed out that no real risk would arise when the offender has been sentenced to a long period of imprisonment, where parties have been divorced, or where it is plain they will never live together as man and wife.  In other cases power given under the then existing scheme could be utilised to make special arrangements for the administration of the award so as to ensure the offender did not benefit from it.  It appeared to the Board at that time the exclusion of children who were assaulted by their parents or by a man who is living with her mother appeared to them to be unjustified.  They referred to the only application made by a child injured by a member of the family.  That had been refused because of the same roof rule but the Board could not tell how many may have failed to apply for the reason that their claims are excluded by that rule.

[8]        That recommendation was given effect to after a review of the scheme by a report of an interdepartmental working party in 1978.  The scheme’s rules were changed and for offences committed on or after 1 October 1979 an award could be made where the assailant and applicant lived together so long as the assailant had been prosecuted in connection with the offence or a claims officer considered that there are good reasons why a prosecution had not been brought however, for offences committed before 1 October 1979 the original rules were retained.

[9]        Accordingly, when the petitioner came to submit her application the same roof rule applied to her because the offences had been committed before 1 October 1979.

 

The arguments of the petitioner
[10]      Mr Mitchell argued that paragraph 7(b) of the 2008 Scheme and the decision taken in terms of it were unlawful, being in breach of article 14 and article 1 of the First Protocol (A1P1) to the European Convention of Human Rights (the Convention) and section 6 of the Human Rights Act 1998.  Paragraph 7(b) discriminated on the basis of the petitioner’s status contrary to article 14.

[11]      He recognised that article 14 had no independent existence and that it was necessary for him to demonstrate that the decision to refuse compensation came within the scope or ambit of A1P1.  To do that he had to show that the claim to compensation in this case constituted a possession within the meaning of A1P1.

[12]      If he was able to demonstrate that the decision came within the ambit of A1P1 and that the discrimination was based on a status within the meaning of article 14, he further argued that it was for the state to justify any such discrimination and that the respondent had failed to do so in this case.

[13]      Article 14 of the Convention provides that:

“The enjoyment of the rights and freedom set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, politics or other opinion, national or social origin, association with a national minority, property, birth or other status”.

 

Mr Mitchell recognised that this was not a general prohibition on discrimination but provided only that there should be no discrimination in the enjoyment of other substantive convention rights.  Accordingly, the petitioner had to bring herself within the ambit of one or more of those substantive provisions and, in this case, he relied on A1P1 which provides inter alia:

“(1)      Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one should 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.”

 

[14]      At the centre of Mr Mitchell’s argument on this branch of his submissions was that a claim for criminal injuries compensation constituted a possession within the meaning of A1P1.  This could be because there is an ultimate entitlement to it under national law or because there is a legitimate expectation of receiving it ultimately.  Further, if the reason why the claimant had not been awarded it or cannot receive it under national law is itself a discriminatory ground under article 14 that would mean that the petitioner’s complaint fell within the ambit of A1P1.  He submitted that the position of the respondent in this case failed to recognise the last aspect of his formulation.  He referred to the Practical Guide on Admissibility Criteria 2015 60 EHRR SE 8 issued by the European Court of Human Rights.  At paragraph 359 it is stated:

“The concept of possessions may be extended to a particular benefit of which the persons concerned have been deprived due to a discriminatory condition of entitlement.”

 

[15]      There reference is made to the case of Stec and others v UK 2005 41 EHRR SE 18.

[16]      Mr Mitchell argued that this case was significant since it provided the authority for his last proposition.  He referred to paragraph 54 of Stec in particular.  In this case, but for paragraph 7(b), the petitioner would have a claim for a pecuniary right by way of criminal injuries compensation.  Accordingly, although the state did not require to provide any form of benefit such as criminal injuries compensation, having decided so to provide it, benefit cannot be denied on discriminatory grounds.  In so far as the Inner House had decided to the contrary in an obiter passage in the opinion in DJS v The Criminal Injuries Compensation Appeal Panel 2007 SC 748 at paragraph 84, I should not follow the reasoning there because it did not have the benefit of the line of authorities which had followed the case of Stec and in particular, of the Supreme Court decisions in R (RJM) v Work and Pension Secretary 2009 1 AC 311 paragraphs 23 to 34 and Mathieson v Secretary of State for Work and Pensions 2015 1 WLR 3250.

[17]      Mr Mitchell submitted that the petitioner’s situation as a member of the household in which she was assaulted by her mother was a status within the meaning of article 14.  The grounds in article 14 go beyond innate or personal characteristics and include homelessness (RJM paragraphs 5 and 35-47), a long term inpatient as opposed to someone living at home (Mathieson paragraphs 9-23).  Here the petitioner’s status was (a) membership of the assailant’s family (b) as someone over 29 claiming in respect of injuries inflicted by a member of her family and (c) someone claiming in respect of injuries inflicted by a family member before 1 October 1979.  These are personal characteristics over which the petitioner had no control. 

[18]      Mr Mitchell submitted that the discrimination had to be justified by the respondent and that this had not been done.  There was no “reasonable and objective” justification for it.  The only attempt at justification was at paragraph 35 of the respondent’s note of argument which advanced the avoidance of “an unquantifiable financial burden” on publically funded schemes if all same roof claims were to be admitted for pre 1 October 1979 incidents.  That burden was not quantified and is not said to be great or impossible to quantify.  From the terms of the Eighth Report (6/4 of process) it would appear that the number of claimants would be small.  There were other checks and balances in the Scheme which might affect eligibility.  He referred to Fabris v France 2013 57 EHRR 19 as a case of discrimination against children born outside marriage in respect of inheritance rights as showing the court’s evidential approach to the issue of whether any discrimination was proportionate between the means employed and the aim to be realised.  That approach had been followed in Mathieson at paragraphs 27-37.  Here the respondent had failed to demonstrate any justification.

 

The arguments for the respondent
[19]      Mr Webster moved me to dismiss the petition and refuse all orders sought.  If I was against him I should only reduce the decision complained of.  To do otherwise was not within the power of the court being a matter for the legislator. 

[20]      The Review of the Scheme in 1979 by an interdepartmental working party examined the same roof rule and recommended that it should not be retained.  However, any assessment of the practical and financial consequences of even a limited extension to give compensation to family members had been difficult to estimate (paragraph 7.23 of the Report 7/2 of process).  The extent of the problem was not known, although some estimates of cost were made in Appendix 2.  The response to that was to allow awards to be made for offences committed after 1 October 1979 subject to certain conditions but to retain the rule for offences prior to that date. 

[21]      The 2008 Scheme had been made under primary legislation and with parliamentary scrutiny.  Parliament retained control of the scheme which had been updated and revised since 2008.  Parliament was best able to judge the economic and social measures appropriate to balance the interests of claimants and the resources of the state.  It was not for the court to make the choice between available options for addressing an issue of policy such as this.

[22]      There had been further consideration of the matter in 2012 with an Equality Impact Assessment for the Ministry of Justice (7/4 of process).  That proposed that the rule be retained for injuries before 1 October 1979.  One of the conditions imposed on cases occurring after that was removed.  At paragraph 167 the rationale for retaining the rule for pre 1 October 1979 cases is set out.  Retention of the rule was a proportionate response and could not be said to be manifestly without foundation. 

[23]      In any event, a claim to criminal injuries compensation is not a possession within the meaning of A1P1.  There was no enforceable claim.  It was not known whether the petitioner would have any claim even ignoring the same roof rule.  The 2008 Scheme required a number of judgements to be made before a payment of compensation could be made and a discretion has to be exercised (see paragraph 6 of the Scheme).  A claim may be withheld in a number of circumstances (paragraph 13).  If compensation is to be paid, it can be reduced to take account of other payments (paragraphs 45 and 48).  There was no right to compensation or any legitimate expectation of an award.  This was a merely arguable claim and fell outside the scope of A1P1 (Kopecky v Slovakia 2005 41 EHRR 43 and M v SSWP 2006 AC 91).  The case of Stec should not be interpreted as expanding the scope of A1P1 or article 14.  It was a case concerning entitlement, as of right, to public funds in the form of welfare benefits on which people may be dependent (see paragraphs 49-50).  The distinction formerly made between contributory and non‑contributory benefits was departed from on the basis that it was illogical.  The Inner House in DJS had full regard to Stec and had decided that a claim for criminal injuries compensation did not come within the scope of A1P1.  I should follow the reasoning contained there.

[24]      While the Upper Tribunal in JT v First-tier Tribunal and CICA 2015 UKUT 047 (ACC) had expressed disagreement with DJS, it had not properly analysed Stec.  He referred to Associazione Nationale Reduci Dalla Prigionia Dall Internamento E Dalla Guerra Di Liberazione v Germany 2008 EHRR SE11 (the Italian Interns Case).  Certain features in that case were similar to the present.  The claims for compensation for being prisoners of war who had been forced to work were on off payments for which they had to qualify and was not available as of right.  An exercise of judgement had to be made on the claims.  The court had distinguished these types of claims from those in Stec.  The petitioner’s claim was analogous to these. 

[25]      Mr Webster argued that, in any event, the petitioner had no relevant status in terms of article 14.  The petitioner was not being discriminated against on the basis of any personal characteristic.  Co‑residence was not a personal characteristic.  The Inner House had considered this matter in DJS at paragraph 85 in the context of the equivalent paragraph in the 1996 Scheme and had concluded that the distinction in treatment was based solely on the time when the injury was sustained not upon any characteristic of the claimant.  While Strasbourg jurisprudence asks whether a difference in treatment in respect of people in similar situations, the discrimination required to be on prohibited grounds and to have no objective and reasonable justification (Stec paragraph 51 and AL (Serbia) v Home Secretary 2008 1 WLR 1434 at paragraphs 22- 31).  This was not the case here.  The state had a wide margin of appreciation in social and economic policies.  The courts should respect Parliament’s constitutional function (Bank Mellat v HM Treasury (No 2) 2014 AC 700 paragraph 44 and R(JS) SSWP 2015 1 WLR 1449 paragraphs 92-96). 

[26]      The justification for the same roof rule could be traced back to the origins of the scheme in 1964 and arose from the difficulty in establishing the facts and ensuring that the compensation did not benefit the offender.  The policy decision to make changes prospectively and not retrospectively from 1 October 1979 was rational and avoided an unquantifiable financial burden. 

 

Discussion and Decision
[27]      The first question is whether the petitioner’s situation can be said to come within the ambit of A1P1 in conjunction with article 14.  She contends that her claim to criminal injuries compensation is a possession within the meaning of A1P1 which is denied to her, according to the decision letter of 10 March 2014, because of the same roof rule.  That rule is itself discriminatory.  The Inner House in DJS at paragraph 84 found that the petitioner could not be said to have a possession because her claim was “doomed from the outset to failure under national law” and quoted Roche v UK at paragraph 129.  It said that nothing in Stec undermined that conclusion.  The court stated that the situation was not that the rule constituted a procedural bar but meant that there simply was no right. 

[28]      However, the court did not have the benefit of the analysis of Stec which the Supreme Court has subsequently made in cases such as RJM and Mathieson on the matter of the ambit of A1P1 or on the question of status.  In RJM Lord Neuberger of Abbotsbury outlined the argument for the Secretary of State at paragraph 23 as being that, because the claimant had neither a right or a legitimate expectation to the disability premium, his claim did not come within the ambit of A1P1 and his article 14 claim failed.  In the following paragraph his Lordship said that, but for Stec, he would have probably accepted that argument.  The argument in RJM was very similar to the one advanced by Mr Webster here.  His Lordship made reference in particular to paragraphs 47 to 54 of Stec.  At paragraph 48 the ECtHR states that

“It is in the interests of the coherence of the Convention as a whole that the…. concept of “possessions” in A1P1 should be interpreted in a way which is consistent with the concept of pecuniary rights under article 6(1).  It is moreover important to adopt an interpretation of A1P1 which avoids inequalities of treatment based on distinctions which at the present day appear illogical or unsustainable”. 

 

At paragraph 54 the ECtHR went on to state that:

“In cases such as the present concerning a complaint under article 14 in conjunction with A1P1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right enforceable under domestic law, to receive the benefit in question.  Although A1P1 does not include the right to receive a social security payment of any kind, if a state does decide to create a benefits scheme, it must do so in a manner which is compatible with article 14.”

 

That paragraph appears to me to involve the court looking beyond the same roof rule and to ask whether the petitioner would have an enforceable right to a benefit.  Mr Webster declined to say whether or not she would have such a right since there had been no consideration of her claim but that approach would preclude further scrutiny in every case.  In any event, many social security benefits require the claimant to qualify on various grounds and for judgements to be made by decision makers on entitlement.  The provisions in the Social Security Contributions and Benefit Act 1992 section 73 and the regulations made thereunder in respect of Disability Living Allowance provide an example.   Judgements require to be made of a claimant’s ability to walk in order to decide entitlement to the mobility component. 

[29]      Nor do I consider that, because this case is outside the framework of social security legislation, the reasoning in Stec does not apply.  I do not read that case as being confined to social security benefits.  The same approach appears to have been used in the area of immigration in Hode and Abdi v UK 2013 56 EHRR 27 at paragraph 43 and quoted at paragraph 17 of Mathieson.  The Upper Tribunal in JT v First-tier Tribunal and another 2015 UKUT 478 (ACC) has come to the same conclusion for reasons with which I agree. 

[30]      The Italian Interns case involved applicants who had been POWs during the Second World War who could be forced to work in terms of the Hague Convention (paragraphs 21 and 43) and so could have no legitimate expectation of a claim.  It was not domestic law which excluded them.  There was no legal relationship between the applicants and Germany (paragraphs 20 and 29).  At paragraphs 66 and 67 the court rejected their claims because there was “no legal provision whether of an international or of a domestic character, supporting the applicant’s claims” against Germany.  The claims of the civilians were excluded under the Foundation Law section 11(1) and they likewise could have no legitimate expectation of compensation (paragraph 71). 

[31]      I therefore, with due respect, do not agree with the reasoning given obiter in DJS.  The petitioner here has an interest with an economic value in the form of her claim for compensation and which falls in my view within the ambit of A1P1 in conjunction with article 14.  As was pointed out by Lord Wilson in Matheison paragraph 17, the claimant need not establish that the decision amounts to a violation of or even an interference with her convention rights.  She need only establish the refusal of her claim is linked to or within the scope or ambit of one or other of these articles. 

[32]      Does the denial of her claim involve a difference in treatment on a ground prohibited by article 14?  Parties agreed that if article 14 applied it was only in respect of the petitioner’s status.  Mr Webster argued that co-residence was not a status for these purposes.  Having regard to the very detailed discussion on this issue by Baroness Hale in AL (Serbia) at paragraphs 20 to 35, I have come to the view that the petitioner’s situation is a status within the meaning of the article. 

[33]      The emphasis is not on finding an exact comparator (paragraph 24).  It is an arid exercise to identify the precise characteristics of the persons with whom the claimants should be compared (paragraph 28).  There must be a difference in treatment of persons in “otherwise similar situations” (Stec paragraph 51).  The petitioner is a victim of violent crime perpetrated when she was a child.  Because she was assaulted by her mother in the family home she is denied compensation under the same roof rule.  If her mother had assaulted a friend of the complainer’s at the same time, that child would be entitled to advance a claim.  Both would be child victims of violent crime.  That is enough in my view to demonstrate a difference in treatment between persons in “analogous situations”.   

[34]      The court in DJS focussed on the identification of an exact comparator but again did not have the benefit of the analysis of Stec by Baroness Hale to which I was referred and which involves a more flexible approach.  Again, with respect, I do not adopt the approach of the court in DJS.

[35]      Baroness Hale also discusses at paragraphs 29 to 31 the nature of the prohibited grounds on article 14 and observes that some differences in treatment require “very weighty reasons” to be justified such as those based on race, colour or ethnic origin.  These have been said to be in the “suspect” or “core” category.  But others do not fall within this category and only depend on considerations of general public interest.  These might only require some rational explanation.  But she emphasised the need for any discriminatory measure to pursue a legitimate aim and to be proportionate.  In the realm of state benefits to the homeless, for example, the Supreme Court has said that the court should be very slow to substitute its view for that of the executive (RJM paragraph 56).  In a case involving child tax credit paid entirely to the mother, the court determined the issue by reference to whether the rule was manifestly without foundation (Humphreys v Revenue and Customs Comrs.  2012 1 WLR 1545 paragraphs 19-20). 

[36]      The petitioner in the present case is not complaining of a difference in treatment on any of the core grounds referred to in article 14.  It is in the context of an award of compensation provided by the state as a matter of policy to victims of crime.  The offending rule is one for which there was thought by the state to be justification in the scheme as originally framed in 1964 on the basis of difficulties of proof and a fear that the offenders might benefit from  awards given.  That was rational and understandable.  When criticism was made of the rule in 1972 as being unjust, the government’s response was to make a prospective change but to retain the rule for injuries inflicted before 1 October 1979.  That was done because of the difficulty in estimating the cost of wholesale abolition.  The charge was proposed by the Review of the working party of 1978 to be “for a limited period and experimental” (see paragraph 7.23 of 7/2 of process).  The scheme had been running for over a decade by that time.  The change meant that victims of family violence inflicted after that date would be eligible for compensation and thus extended the scheme. 

[37]      The rule does impose a “bright line” rule which excludes claims for injuries occurring before the relevant date.  It thus does discriminate.  But it was done in that way because it was not thought possible to estimate the cost of abolition.  It produces hard cases for those falling on the wrong side of the relevant date such as the petitioner.  However, the change has benefitted claimants, injured after the relevant date, who would not otherwise be eligible.  The rule assists in making the scheme sustainable.  While, as Mr Mitchell pointed out, the working party in 1978 considered that the additional burden of abolition would not necessarily be great, the government was entitled to take a cautious approach and to impose a cut-off date to mitigate the effects of change.  The Assessment of July 2012 referred to limitations of the available evidence but proposed removal of the requirement that a prosecution should have taken place and thus further expanding the categories of potential claimants.  

[38]      Having regard to those factors and the deference the court should pay to policy decision of this sort in an area of general public interest, I am unable to conclude that the same roof rule contained in the 1979 Scheme is manifestly without foundation.  It is a proportionate response to the criticisms made of the rule and one within the legitimate exercise of the discretion accorded to Parliament. 

[39]      For these reasons I will sustain the pleas in law for the respondent and dismiss the petition.  Parties also submitted argument on the appropriate remedy in the event of my finding in the petitioner’s favour.  Had I done so, I would have put the case out By Order for further argument on that issue.   I will reserve meantime all questions of expenses.