R v Criminal Injuries Compensation Board Ex p. P

Factual and Procedural Background

The appellants, referred to as Plaintiff and Appellant respectively, were both victims of sexual abuse by their step-fathers during their childhoods. Plaintiff was born in 1962 and claimed abuse occurred between 1967 and 1976, while Appellant was born in 1964 and claimed abuse between 1971 and 1982. Both submitted claims for compensation to the Criminal Injuries Compensation Board (the Board) in 1990. Plaintiff's claim was rejected for incidents before 1 October 1979, and Appellant received a partial award for abuse after that date but was denied compensation for incidents prior to it. The Board applied paragraph 7 of the 1969 Criminal Injuries Compensation Scheme (the 1969 Scheme) to reject claims for pre-1979 incidents.

Both appellants sought judicial review of the Board's decisions rejecting their claims for pre-1979 incidents. Their applications for judicial review were dismissed by the Divisional Court of the Queen's Bench Division on 28 April 1993, leading to the present appeals.

Legal Issues Presented

1. Does the court have jurisdiction to examine the legality of the Criminal Injuries Compensation Scheme?
2. Is the issue of the Secretary of State's exclusion of claims for incidents before 1 October 1979 justiciable?
3. Do the appellants have any right or legitimate expectation to receive compensation for offences committed before 1 October 1979?
4. Was the Secretary of State's decision to exclude such claims irrational?

Arguments of the Parties

Appellants' Arguments

• The Secretary of State acts under prerogative or executive powers and must exercise these powers rationally, fairly, and lawfully.
• The exercise of these powers is subject to judicial review.
• Once the Scheme was introduced, claimants like the appellants had a legitimate expectation of rational and lawful administration of the Scheme.
• The exclusion of victims of family violence before 1 October 1979 is arbitrary, irrational, and unfair, disproportionately affecting women and children.
• The "same roof" rule discriminates without rational basis and lacks proportionality between legitimate aims and means employed.
• The Secretary of State has not provided evidence justifying the continuation of the exclusionary rule for pre-1979 incidents.
• The decisions rejecting the appellants' claims on the basis of paragraph 7 of the 1969 Scheme are unlawful and irrational and should be quashed.

Secretary of State's Arguments

• The Board's decisions during Scheme administration are subject to judicial review, but the original and revised determinations of the Scheme's scope are executive discretion not subject to such review.
• The Scheme involves distribution of public funds authorized by Parliament, and its terms cannot be reviewed by the courts.
• Payments are ex gratia; thus, claimants have no enforceable rights or legitimate expectations beyond the Scheme as it stands.
• It is for the Secretary of State, not the courts, to decide what constitutes a fair Scheme.
• Decisions involving competing policy considerations and limited resources are not suitable for judicial review.
• The retention of the pre-1979 exclusion was rational and consistent with recommendations for limited experimental extension of the Scheme.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming its jurisdiction to review the legality of the Scheme despite it being established under prerogative or executive powers without statutory authority. It emphasized that parliamentary approval of funding does not exclude judicial scrutiny of the Scheme's legality. The court considered the justiciability of the issue, recognizing that while some prerogative decisions involve high policy and competing considerations unsuitable for judicial review, the particular exclusion of pre-1979 family violence claims was not a matter of such high policy.

The court acknowledged the difficulty in challenging executive decisions involving resource allocation but found no evidence that the exclusionary rule was irrational or arbitrary. The decision to apply the revised Scheme prospectively from 1 October 1979 was consistent with common governmental practice to avoid retrospective application of new burdens or benefits, especially given the evidential and administrative difficulties in family violence cases.

Regarding legitimate expectation, the court noted that payments under the Scheme are ex gratia and do not create enforceable rights. Nonetheless, this point was not determinative given the court's conclusions on justiciability and rationality. Ultimately, the court found no basis to conclude that the Secretary of State's decision was unlawful or irrational.

The court also distinguished between the independent Board's decisions made in accordance with the Scheme and the executive's policy decisions establishing the Scheme's terms, holding that challenges must be directed at the latter.

Holding and Implications

The court DISMISSED the appeals.

The direct effect of this decision is that the exclusion of compensation claims for family violence incidents occurring before 1 October 1979, as set out in paragraph 7 of the 1969 Scheme, remains lawful and will continue to be applied. No new precedent was established beyond affirming the court's jurisdiction to review such executive schemes, but also confirming the high threshold for finding irrationality or unlawfulness in decisions involving allocation of public funds and policy considerations.