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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord OsborneLord Mackay of DrumadoonLady Dorrian |
[2007] CSIH 49P1473/02 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: _______ |
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
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
"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
[3] The
Criminal Injuries Compensation Act 1995, "the 1995 Act", received the Royal
Assent on
"(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
[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
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
[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
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
[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
[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
[13] Those represented by the second-named respondent had acted
unlawfully. By the time that the
decision of
[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 A.C. 557 at
para. 23, a case not put before the Lord Ordinary, Wilson v First County Trust
Limited (No.2) [2004] 1 A.C. 816 and Wessels-Bergervoet
v The Netherlands (2004) 38 E.H.R.R.
37.
[15] The Human Rights Act 1998 came into force on
[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
[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
[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
[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
[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
[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] E.W.H.C. 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 W.L.R. 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
[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
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 W.L.R. 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
[30] Further support for the respondents' position was to be found
in In Re McKerr [2004] 1 W.L.R. 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
[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 W.L.R. 637. In particular, the
observations of Lord Nicholls of
[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 E.H.R.R. 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 A.C. 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
[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 A.C. 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
[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
[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
[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
[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
[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
[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
[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 E.H.R.R. 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
[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
[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 W.L.R. 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
[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.