England: Legal challenge over Criminal Injuries Compensation Scheme dismissed

The claimants argued that the scheme was “unlawful” because it breached the European Convention on Human Rights, but a judge at the High Court in London refused the applications for judicial review after ruling that the “exclusionary rule” was not “manifestly without reasonable foundation”.

The court heard that the first claimant, Leon McNiece, applied to the Criminal Injuries Compensation Authority (CICA) in February 2014 after suffering a fractured skull as a result of an by a taxi driver, who struck him on the head with golf club.

On the day before that application the claimant was involved in a domestic altercation with the partner of his friend’s mother, and was subsequently convicted in November 2014 of assault and sentenced to a 12-month community order.

In May 2015, CICA concluded that it could not make an award because the claimant had an unspent conviction which resulted in a community order.

The two other claimants, twin brothers Edgaras Subatkis and Edvinas Subatkis, were trafficked to the UK from Lithuania in 2013 and subjected to exploitation and abuse, for which those responsible were jailed after being convicted of trafficking offences.

The claimants applied to the CICA for compensation under the scheme in June 2016 year, but both Edgaras, who had been convicted of burglary in 2010 and sentenced to three years’ imprisonment and Edvinas, was sentenced to 11 months’ imprisonment after being convicted of theft in 2011, were told by CICA in July 2016 that they were not entitled to an award.

In the McNiece case, the grounds for the claim were that “blanket ban” on awards being made under the scheme to those with an unspent conviction which led to a custodial or a community sentence constituted a “disproportionate interference” in the claimant’s rights under Article 1 of Protocol 1 (A1P1) to the European Convention on Human Rights and that it was “unjustifiably discriminatory” contrary to A1P1 read together with Article 14 of the Convention.

It was also argued that it was “ultra vires” the statutory powers pursuant to which the scheme was made, and “irrational”.

The grounds in the case of Edgaras Subatkis and Edvinas Subatkis were identical to the first two grounds relied on in the case of McNiece but, in addition, it was contended that the “blanket ban” was in breach of Article 17 of Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (the “Anti-Trafficking Directive”), and Article 1 of Protocol 1 read together with Article 4 of the European Convention on Human Rights.

However, the court dismissed the claims of each of the claimants on each of the Grounds advanced.

In a written judgment, Mr Justice Wilkie said: “In my judgment, the bright line exclusionary rule…contains within it many elements of nuance and does not represent a hard and fast, one-size fits all, approach. The period during which a conviction is unspent depends on the seriousness of the offence and the circumstances of the offender as reflected in the sentence passed and the period before the offence becomes spent under the Rehabilitation of Offenders Act.

“Inevitably, that means that the date of the offence is highly relevant on when the conviction becomes spent. These are all variables which reflect on the seriousness of the applicant’s offending, his or her history, and/or mitigating factors, and how recent the offending was as reflected in the type and custodial length of sentence.

“Whilst one obvious way of building in flexibility to a bright line exclusionary rule is to give the decision maker a discretion to exclude or ameliorate its impact on grounds of exceptional circumstances or broader criteria, in my judgment, it cannot be said that this Scheme, passed by Parliament, is rendered manifestly without reasonable foundation by reason of the omission of such provision…”

The Subatkis twins also contended that, whatever maybe the legitimacy of the blanket ban on awards to those with unspent relevant criminal convictions with the aim of safeguarding the sustainability of the scheme, there was “a more prominent strain of public policy against trafficking”, which require that all victims “must have the possibility of compensation” which defeats the blanket exclusion of victims of trafficking who have a relevant unspent conviction.

But the judge held that the scheme was compliant with Article 17, as victims of trafficking were able to access the existing national scheme and were entitled to have their claim considered substantively, and that Article 17 did not impose an obligation on the State to compensate victims of crimes of trafficking beyond the terms of the existing national scheme.

Mr Justice Wilkie added: “If, as I have concluded, the terms of an existing scheme lawfully impose eligibility criteria which an individual victim of trafficking fails to comply with or which has the effect of excluding a victim of trafficking from compensation under the scheme, and does so lawfully, then, in my judgment, a victim of trafficking cannot expand the scope of the scheme as it applies to him to obtain compensation outside the terms of the scheme, nor can he contend that applying the terms of the scheme to him, so that he is excluded from compensation, constitutes a breach of Article 17 by the State.

“Similarly, in my judgment, the terms of Article 4 of the ECHR even if informed by ECAT, would not advance the claimants’ case as ECAT is of the same or similar effect as Article 17 of the Directive.”