A FOR JUDICIAL REVIEW OF A DECISION BY THE FIRST-TIERE TRIBUNAL (CRIMINAL INJURIES COMPENSATION)

Factual and Procedural Background

The Petitioner applied to Company A, the Criminal Injuries Compensation Authority ("CICA"), for compensation under the Criminal Injuries Compensation Scheme 2012 ("the Scheme") in respect of a sexual assault that occurred in Scotland in 1997. However, the Petitioner had a community payback order imposed in 2012 following a conviction for assault, which was unspent at the time of the application due to the rehabilitation period applicable in Scotland. As a result, CICA withheld compensation, and this decision was upheld on review. The Petitioner appealed to the First-tier Tribunal (Criminal Injuries Compensation) ("F-tT"), arguing that the differing rehabilitation periods between Scotland and England and Wales resulted in unlawful indirect discrimination on the ground of residence contrary to article 14 of the European Convention on Human Rights ("the Convention"). The F-tT refused the appeal, holding that any discrimination arose from separate policy choices by the UK and Scottish Parliaments. The Petitioner then sought judicial review of the F-tT's decision before the Outer House of the Court of Session.

Legal Issues Presented

1. Whether CICA unlawfully discriminates on the ground of residence among victims of crime in Great Britain by varying the decision to withhold compensation based on rehabilitation periods applicable in the jurisdiction where the crime was committed.
2. Whether the difference in treatment arising from the application of differing rehabilitation periods under the Rehabilitation of Offenders Act 1974 ("the 1974 Act") as amended, is justified under article 14 of the Convention.
3. Whether the Scheme permits or requires CICA to determine eligibility for compensation based on the rehabilitation period applicable in the place where the injury occurred.

Arguments of the Parties

Appellant's Arguments

• The Petitioner argued that if she had been resident in England at the time of the offence, conviction, and application, her conviction would have been spent due to the shorter rehabilitation period, entitling her to compensation.
• She accepted there was no deliberate discrimination but contended that indirect discrimination on the ground of residence occurred, contrary to article 14 of the Convention.
• The Petitioner asserted that victims are more likely to suffer injury in their place of residence, so Scottish residents are disproportionately affected by longer rehabilitation periods.
• She criticized the respondents' justification for lacking evidence to support differing degrees of opprobrium attached to offending in different parts of Great Britain.
• She contended there was no rational connection between the Scheme’s operation and the objective of relating compensation to the place of harm.
• The Petitioner argued for a more intense level of judicial scrutiny, asserting there was no evidence of parliamentary consideration of the differential treatment or its justification.
• She alternatively submitted that CICA’s interpretation of the Scheme was arbitrary, irrational, and unsupported by legislation.
• She also raised an argument concerning discrimination on the sensitive ground of nationality.

Respondents' Arguments

• The respondents accepted for the purposes of the proceedings that the Petitioner’s complaint fell within the ambit of her Convention rights and that she was treated differently on the ground of status.
• They argued that the Scheme’s differential application of rehabilitation periods reflected legitimate policy choices by the UK and Scottish Parliaments and was a natural consequence of the devolution settlement.
• The respondents maintained that the relevant rehabilitation period is that applicable in the jurisdiction where the injury occurred, irrespective of the applicant’s residence or place of conviction.
• They submitted that residence is a characteristic related to what people do rather than who they are, thus attracting a low intensity of judicial scrutiny.
• The respondents contended that the Scheme’s incorporation of the 1974 Act’s definition of "spent conviction" ensures consistency between rehabilitation under the Scheme and rehabilitation generally.
• They emphasized that Parliament approved the Scheme after amendments to the 1974 Act had introduced differential territorial application of rehabilitation periods.
• The respondents asserted that CICA’s operational guidance applying different rehabilitation periods depending on the place of injury was rational, proportionate, and consistent with the 1974 Act.
• They argued that the difference in treatment was justified as it related to the place of injury and ensured consistency in treatment of victims within each jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
DH v Czech Republic ((2008) 47 EHRR 3)	Illustration of unlawful indirect discrimination under article 14 of the Convention.	Petitioner relied on this case to support claim of indirect discrimination on the ground of residence.
A and B (Appellants) v Criminal Injuries Compensation Authority (2021 1 WLR 3746)	Broad interpretation of "status" under article 14; justification of Scheme’s exclusionary rule based on unspent convictions.	Court proceeded on the basis of this decision; respondents relied on its recognition of justification of similar Scheme provisions.
Clift v United Kingdom (Application No 7205/07, 13 July 2010)	Recognition of status grounds under article 14.	Respondents conceded that Petitioner was treated differently on a status ground.
R (RJM) v Secretary of State for Work and Pensions ([2009] 1 AC 311)	Definition of 'personal characteristic' and 'status' under article 14.	Guided the court’s acceptance that residence can constitute a status for article 14 purposes.
Carson v United Kingdom (2010 51 EHRR 13)	Differential application of the same legislation can amount to discrimination on the basis of status.	Supported the court’s view that the Scheme’s differential territorial application constitutes treatment on the basis of status.
Bank Mellat v HM Treasury (No 2) ([2014] AC 700)	Proportionality test and intensity of judicial review in human rights cases.	Applied to assess justification of differential treatment under article 14.
Stec v United Kingdom ((2006) 43 EHRR 47)	Judicial deference to legislature in social and economic policy unless manifestly without reasonable foundation.	Supported lower intensity of scrutiny for social welfare policy choices.
Humphreys v Revenue and Customs Commissioners ([2012] 1 WLR 1545)	Similar principle of judicial restraint in social policy.	Reinforced the standard of review applied.
Belfast City Council v Miss Behavin' Ltd ([2007] 1 WLR 1420)	Consideration of whether public authority addressed human rights concerns in policy-making.	Informed the analysis of the weight to be given to policy choices.
Ealing LBC v Race Relations Board ([1972] AC 342)	Distinction between discrimination on grounds of national origin and residence.	Quoted to clarify that discrimination on residence is not discrimination on national origin “as such”.

Court's Reasoning and Analysis

The court began by examining the Scheme’s definition of a "spent conviction," which is linked directly to the Rehabilitation of Offenders Act 1974 ("the 1974 Act"). The rehabilitation periods under the 1974 Act depend on the sentence imposed rather than the nature of the offence. Originally, the 1974 Act applied uniformly across Great Britain, but amendments made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") introduced jurisdiction-specific rehabilitation periods for England and Wales and for Scotland.

This legislative divergence created different rehabilitation periods for equivalent sentences in Scotland and England and Wales, resulting in potential differences in eligibility for compensation under the Scheme, which incorporates the 1974 Act’s definitions. The court rejected the Petitioner’s argument that the Scheme could apply a lower rehabilitation period than that set by the 1974 Act, holding that the Scheme requires adherence to the Act's definitions.

The court held that the difference in treatment arises from the differential application of the same legislation (the Scheme incorporating the 1974 Act) across jurisdictions within Great Britain, which constitutes differential treatment on the ground of residence, a recognized status under article 14 of the Convention.

Applying the proportionality test from Bank Mellat, the court found that the objective of ensuring consistency between rehabilitation under the Scheme and rehabilitation generally under the 1974 Act is sufficiently important to justify the difference in treatment. The measure is rationally connected to this objective because it aligns compensation eligibility with local rehabilitation laws and treats victims within the same jurisdiction consistently.

The court noted there was no argument or evidence presented regarding less intrusive means to achieve this objective, and the objective outweighed any indirect difference in treatment. The court also emphasized the importance of judicial restraint in social welfare policy areas and the margin of appreciation afforded to legislative choices, especially in a devolved legislative context.

The court rejected the Petitioner’s alternative arguments of irrationality and lack of statutory authority, holding that the Scheme permits the approach taken by CICA.

Holding and Implications

The court’s final decision was to REFUSE THE PETITION, thereby upholding the First-tier Tribunal’s decision and sustaining the respondents’ pleas in law.

This decision means that the differential application of rehabilitation periods based on the jurisdiction where the injury occurred, as incorporated into the Scheme through the 1974 Act, is lawful and justified under article 14 of the Convention. The ruling confirms that residence-based differences arising from the devolution of legislative powers and the Scheme’s operation do not amount to unlawful discrimination. No new precedent altering existing principles was established; rather, the court reaffirmed the appropriateness of judicial deference in social welfare policy and the legitimacy of the Scheme’s alignment with the 1974 Act.