Factual and Procedural Background
The Appellants, twin brothers and nationals of Lithuania, were convicted in their home country of burglary and theft, resulting in custodial sentences which remained unspent at the time of their application. Subsequently, in 2013, they were trafficked to the United Kingdom and subjected to labour exploitation and abuse, for which the traffickers were convicted and sentenced. The Appellants applied for compensation under the Criminal Injuries Compensation Scheme 2012 ("the Scheme") in 2016. However, their applications were refused by the Criminal Injuries Compensation Authority ("CICA") pursuant to provisions excluding applicants with unspent convictions resulting in custodial or community sentences from compensation awards.
The Appellants challenged the lawfulness of these provisions by judicial review, arguing that the Scheme's exclusionary rules were unlawful. Their claims were dismissed by the High Court Judge, Wilkie J, in a judgment dated 12 January 2017. Permission to appeal was granted, and the appeal focuses on two grounds concerning the Scheme's compatibility with European law and the European Convention on Human Rights ("ECHR").
Legal Issues Presented
- Whether the terms of the Scheme breach Article 17 of Directive 2011/36/EU ("the Directive") by impeding access to compensation schemes for victims of trafficking who have unspent relevant criminal convictions.
- Whether the Scheme's exclusionary provisions amount to unjustified discrimination contrary to Article 14 ECHR read with Article 4 ECHR, on the basis that having unspent convictions constitutes an "other status" engaging protection against discrimination.
Arguments of the Parties
Appellants' Arguments
- The Scheme's exclusion of victims of trafficking with unspent convictions denies effective access to compensation contrary to Article 17 of the Directive.
- The wording of Article 17 should be interpreted purposively and in line with fundamental rights, ensuring victims are not barred from compensation due to convictions arising from their vulnerability to trafficking.
- The exclusionary rule is unjustifiably discriminatory under Article 14 ECHR as it treats victims of trafficking the same as other applicants despite their distinct circumstances.
- The Scheme fails proportionality by removing claims officers' discretion to consider individual circumstances, a discretion present in previous versions.
- The exclusionary rule does not fairly balance the need to limit compensation to morally deserving applicants against the interests of trafficked victims whose convictions relate to their vulnerability.
Respondents' Arguments
- Article 17 of the Directive requires only access to existing compensation schemes, not the creation of special schemes for victims of trafficking.
- The Appellants had access to the Scheme and their claims were considered under its terms; thus, no breach arises.
- The State's obligations under Article 4 ECHR do not extend to providing compensation; compensation is not within the ambit of Article 4.
- Having unspent convictions does not constitute an "other status" for the purposes of Article 14 ECHR, relying on binding domestic precedent.
- The exclusionary rule is justified as a legitimate social policy to prevent public funds being paid to serious criminals, and the Scheme is nuanced rather than a blanket exclusion.
- Judicial restraint is appropriate given Parliament's approval and the policy nature of the Scheme.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v L and ors [2013] EWCA (Crim) 991 |
Establishes prosecutorial discretion and abuse of process protections for victims of trafficking compelled to commit offences. |
Referenced as part of the safeguards ensuring victims whose crimes arise from trafficking are not excluded from compensation. |
| Littlewoods Ltd v Revenue and Customs Comrs [2017] UKSC 70 |
Principle of effectiveness that EU law rights must not be rendered practically impossible or excessively difficult to exercise. |
Applied to reject the Appellants' argument that the Scheme denied effective access to compensation. |
| Brown v Stott [2003] 1 AC 681 |
Clarifies that the very essence of a right must not be impaired under the principle of effectiveness. |
Used to support the conclusion that the Appellants' rights were not impaired by the Scheme. |
| R v Joseph (Verna) and others [2017] EWCA Crim 36 |
Confirms court's power to quash convictions of trafficking victims as abuse of process. |
Supports the safeguards protecting victims from exclusion under the Scheme. |
| Stec v United Kingdom (2006) 43 EHRR 47 |
Sets test for discrimination under Article 14 ECHR: difference in treatment must pursue a legitimate aim and be proportionate. |
Applied to assess justification for the Scheme's exclusionary provisions. |
| R (RJM) v Work and Pensions Secretary [2008] UKHL 63 |
Emphasizes judicial restraint in social welfare policy and the legitimacy of general rules with hard cases. |
Supports the view that the exclusionary rule is not manifestly without reasonable foundation. |
| Bank Mellat v HM Treasury (No 2) [2013] UKSC 38 |
Reinforces respect for Parliament's role in policy and legislative instruments. |
Invoked to underline the court's caution in interfering with Parliament-approved schemes. |
| Kay v Lambeth Borough Council [2006] UKHL 10 |
Establishes binding effect of House of Lords/Supreme Court decisions despite conflicting Strasbourg authority. |
Applied to determine binding precedent on "other status" under Article 14 ECHR. |
| R (Clift) v Home Secretary [2006] UKHL 54 and Clift v UK (2010) ECHR |
House of Lords and Strasbourg Court diverged on whether sentence length constitutes "other status" under Article 14. |
The court favored Strasbourg's broader interpretation, finding unspent convictions can constitute "other status". |
| Thlimmenos v Greece (2001) 31 EHRR 15 |
States must treat differently persons in significantly different situations unless objectively justified. |
Used to consider whether victims of trafficking require distinct treatment under the Scheme. |
| Hirst v United Kingdom (No.2) (2006) 42 EHRR 41 |
Addresses discrimination in voting rights of prisoners; measure described as indiscriminate. |
Distinguished as not analogous to the nuanced exclusionary rule of the Scheme. |
Court's Reasoning and Analysis
The Court first addressed whether the Appellants had access to the Scheme under Article 17 of the Directive. It concluded that the Scheme's provisions, including eligibility extensions for trafficking victims, ensured access to the Scheme. The exclusionary rule applied due to the Appellants' pre-existing unspent convictions unrelated to trafficking, a distinction supported by the Directive's language and purpose. The Court rejected the Appellants' purposive interpretation and reliance on the principle of effectiveness, finding no impairment of the essence of the right.
Regarding discrimination under Article 14 ECHR read with Article 4, the Court considered whether the exclusionary rule was within the ambit of Article 4, which prohibits slavery and forced labour. While acknowledging the complexity and leaving the question open, the Court proceeded on the assumption that it was within ambit for argument's sake.
The Court held that having unspent convictions of the relevant kind constituted an "other status" under Article 14, following the Strasbourg Court's broader interpretation in Clift v UK.
On justification, the Court applied the established test that discrimination is only unlawful if manifestly without reasonable foundation. It found the exclusionary rule to pursue a legitimate aim of restricting compensation to morally deserving victims, rationally connected to that aim, and proportionate. The Scheme's nuanced approach, including discretion for lesser offences and statutory safeguards for trafficking victims compelled to offend, reinforced this conclusion. Judicial restraint was emphasized given Parliament's approval and the social policy context.
Accordingly, the Court dismissed the Appellants' claims, finding no breach of Article 17 of the Directive or unjustified discrimination under the ECHR.
Holding and Implications
The Court's final decision is to DISMISS THE APPEAL.
The direct effect is that the Criminal Injuries Compensation Scheme 2012's exclusion of applicants with unspent custodial or community sentences from compensation awards is lawful and does not breach the Directive or the ECHR. The Appellants' applications for compensation remain refused under the Scheme's terms. No new precedent altering the scope of victims' compensation rights or discrimination law was established; the decision affirms the existing balance between legislative discretion in social policy and fundamental rights.