Introduction

The case A v Criminal Injuries Compensation Authority ([2022] ScotSC CSOH_41) adjudicated by the Scottish Court of Session represents a pivotal moment in the discourse surrounding discrimination within the Criminal Injuries Compensation Scheme (CICS) of Great Britain. The petitioner, a victim of a 1997 sexual assault in Scotland, challenged the Criminal Injuries Compensation Authority's (CICA) decision to withhold compensation based on her unspent conviction. The central issue revolved around whether CICA's approach amounted to unlawful discrimination based on the petitioner's residence, given the differing rehabilitation periods prescribed by the Rehabilitation of Offenders Act 1974 across various jurisdictions within Great Britain.

Summary of the Judgment

The Scottish Court of Session, with Lord Harrower delivering the opinion, assessed whether CICA's decision to consider the petitioner's unspent conviction — governed by jurisdiction-specific rehabilitation periods — constituted indirect discrimination under Article 14 of the European Convention on Human Rights (ECHR). The Court concluded that any difference in treatment based on residence was justified under the proportionality test, thereby upholding CICA's decision to deny the compensation claim. The judgment underscored the alignment of CICA's practices with the Rehabilitation of Offenders Act 1974 and affirmed the legitimacy of jurisdictional variations in rehabilitation periods.

Analysis

Precedents Cited

The judgment extensively referenced key cases that shaped the Court's reasoning. Notably:

• DH v Czech Republic ((2008) 47 EHRR 3) — Instructed on evaluating discrimination under Article 14.
• Bank Mellat v HM Treasury (No 2) [2014] AC 700 — Provided the proportionality test framework.
• R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311 — Defined 'personal characteristics' for Article 14.
• Carson v United Kingdom (2010) 51 EHRR 13 — Addressed differential application of legislation.
• A and B (Appellants) v Criminal Injuries Compensation Authority 2021 1 WLR 3746 — Influenced the interpretation of 'status' under Article 14.

These precedents collectively informed the Court's approach to assessing whether the differential treatment based on residence could be legally justified.

Legal Reasoning

The Court employed the proportionality test as outlined in Bank Mellat, which involves four key steps:

1. Legitimate Objective: Determining if the scheme's objective justifies the limitation of the right.
2. Rational Connection: Assessing whether the measure is logically connected to achieving the objective.
3. Less Intrusive Means: Considering if a less restrictive alternative exists that would achieve the same objective.
4. Balancing Effects: Weighing the measure's impact against the importance of the objective.

Applying this framework, the Court found that CICA's differential application based on jurisdiction was rationally connected to consistency with the Rehabilitation of Offenders Act and was proportionate, given that it did not infringe upon core personal characteristics of the individuals.

Impact

This judgment reinforces the acceptance of jurisdiction-specific rehabilitation periods within compensation schemes, provided they align with overarching legislative frameworks like the Rehabilitation of Offenders Act 1974. It sets a precedent indicating that indirect discrimination based on residence can be lawful if adequately justified through proportionality. Future cases involving compensation schemes and discrimination will likely reference this decision to balance legislative intent with human rights obligations.

Complex Concepts Simplified

Spent Convictions and Rehabilitation Periods

A spent conviction refers to a criminal record that, after a specified rehabilitation period, is considered 'spent' and generally does not need to be disclosed for most purposes. The Rehabilitation of Offenders Act 1974 sets varying rehabilitation periods depending on the offense and the sentence received. These periods differ across jurisdictions within Great Britain, leading to potential discrepancies in eligibility for benefits like compensation.

Indirect Discrimination

Indirect discrimination occurs when a seemingly neutral policy disproportionately affects a particular group. In this case, the policy of applying jurisdiction-specific rehabilitation periods indirectly discriminated against residents of Scotland by making it harder for them to qualify for compensation compared to their counterparts in England and Wales.

Proportionality Test

The proportionality test is a method used by courts to assess whether a law or policy that limits a right is justified. It ensures that the limitation serves a legitimate aim, is suitable and necessary to achieve that aim, and that its benefits outweigh the negative impacts.

Conclusion

The Court of Session's decision in [2022] ScotSC CSOH_41 underscores the judiciary's role in balancing legislative frameworks with human rights considerations. By upholding CICA's differential treatment based on residence, the Court affirmed the legitimacy of jurisdiction-specific rehabilitation periods within compensation schemes, provided they align with the principles of proportionality and do not infringe upon deeply personal characteristics. This judgment not only resolves a significant issue for the petitioner but also establishes a framework for assessing similar discrimination claims in the future, ensuring that compensation schemes operate fairly across different jurisdictions while respecting the legislative intent of rehabilitation policies.