Affirmation of Exclusionary Rules in Criminal Injuries Compensation Scheme for Applicants with Unspent Convictions

Introduction

The case of A and B v. Criminal Injuries Compensation Authority & Anor ([2018] EWCA Civ 1534) presents a significant examination of the intersection between victim compensation schemes and criminal convictions within the framework of human trafficking. The appellants, twin brothers from Lithuania, challenged the Criminal Injuries Compensation Authority's (CICA) refusal to award them compensation under the Criminal Injuries Compensation Scheme ("the Scheme"). Their convictions for burglary and theft, though unspent, resulted in custodial and community sentences, respectively. The core issue revolves around whether the Scheme's exclusionary provisions for applicants with such convictions are lawful under the European Convention on Human Rights (ECHR) and relevant EU directives.

Summary of the Judgment

The Court of Appeal dismissed the appellants' claims, upholding the decision of Wilkie J, which found the relevant provisions of the Scheme lawful. The primary focus was on the Scheme's exclusionary rule preventing compensation for individuals with unspent convictions resulting in custodial or community sentences. The appellants had contended that these provisions violated Article 1 of Protocol 1 and Articles 4 and 14 of the ECHR, as well as Article 17 of Directive 2011/36/EU. However, the Court concluded that the exclusionary rule was justified, maintaining that the Scheme's limitations did not breach the aforementioned legal standards.

Analysis

Precedents Cited

The Judgment extensively referenced both domestic and European precedents to underpin its reasoning. Key among these were:

Rantsev v Cyprus and Russia [2010] — Emphasized that human trafficking falls within the scope of Article 4 of the ECHR, obligating states to protect victims.
Clift v The United Kingdom — Differentiated between domestic and Strasbourg Court perspectives on what constitutes an "other status" under Article 14.
Littlewoods Ltd v Revenue and Customs Comrs [2017] — Introduced the principle of "effectiveness," ensuring that EU rights are not rendered practically impossible.
Stec v United Kingdom [2006] — Outlined the test for discrimination under Article 14, emphasizing the state's margin of appreciation.
Chowdury and others v Greece [2017] — Highlighted the state's positive obligations under Article 4 and Article 15 of ECAT regarding victim compensation.

These precedents collectively informed the Court's approach to assessing the legality of the Scheme's exclusionary rules, balancing state obligations with individual rights.

Legal Reasoning

The Court's legal reasoning centered on two main grounds of appeal:

Ground I: Alleged breach of Article 17 of Directive 2011/36/EU regarding victim compensation.
Ground II: Claims of discrimination under Article 14 of the ECHR in conjunction with Article 4.

For Ground I, the Court determined that the exclusionary provisions of the Scheme did not violate Directive 2011/36/EU. The Directive required access to national compensation schemes but did not mandate the removal of existing exclusionary rules established by national authorities. The Court held that as long as victims of trafficking had access to apply for compensation and their claims were considered under the Scheme's terms, the Directive's requirements were met.

Regarding Ground II, the Court affirmed that victims with unspent convictions possessed an "other status" under Article 14, thereby engaging the non-discrimination clause. However, it concluded that the discrimination was justified under the principles outlined in Stec v United Kingdom. The Scheme's exclusionary rules were deemed to have a legitimate aim—ensuring that only morally deserving victims received compensation—and were proportionate measures to achieve this aim, given the state's discretion in allocating limited public funds.

Impact

The Judgment has several implications for future cases and the broader legal landscape:

Affirmation of State Discretion: Upholds the state's broad discretion in designing compensation schemes, especially concerning the allocation of limited resources.
Clarification on "Other Status": Reinforces that having unspent criminal convictions can constitute an "other status" under Article 14, paving the way for similar interpretations in future discrimination claims.
Balance Between Rights and Policy: Demonstrates the Court's willingness to balance individual rights against state interests, particularly in social policy areas like victim compensation.
Guidance on Proportionality: Provides a clear framework for assessing whether exclusionary rules in compensation schemes are proportionate and justified.

Overall, the decision reinforces the principle that while individual rights are paramount, states retain significant leeway in structuring their compensation systems to reflect policy priorities and resource constraints.

Complex Concepts Simplified

Unspent Convictions

An unspent conviction refers to a criminal conviction that remains on an individual's record because the period stipulated by the Rehabilitation of Offenders Act 1974 has not elapsed. In this case, both appellants had unspent convictions that led to custodial and community sentences, triggering exclusion from compensation under the Scheme.

"Other Status" under Article 14

Under Article 14 of the ECHR, "other status" encompasses personal characteristics or situations that cannot be classified under the primary grounds like race or sex. The Court affirmed that having unspent convictions qualifies as an "other status," thereby engaging the non-discrimination protections of Article 14.

Exclusionary Rule

The exclusionary rule in the Scheme refers to the provisions that prevent individuals with certain unspent criminal convictions from receiving compensation. This rule aims to ensure that only victims who are deemed morally deserving receive financial support, aligning with public policy and resource allocation considerations.

Proportionality Test

The proportionality test assesses whether the measures taken by the state are appropriate and necessary to achieve a legitimate aim. It involves evaluating the relationship between the means employed and the objective sought, ensuring that the restrictions on rights are justified and balanced.

Conclusion

The Court of Appeal's decision in A and B v. Criminal Injuries Compensation Authority & Anor reaffirms the legitimacy of exclusionary provisions within compensation schemes, particularly those excluding individuals with unspent criminal convictions resulting in custodial or community sentences. By meticulously balancing individual rights against state interests and resource limitations, the Judgment underscores the Court's role in upholding lawful and proportionate state policies. This case sets a precedent for future disputes concerning the intersection of victim compensation, criminal convictions, and human rights obligations, emphasizing judicial restraint in matters of social policy and legislative discretion.