News - Ben Collins QC and Robert Moretto successful in A and B v CICA & Secretary of State for Justice

- Ben Collins QC, Robert Moretto

A and B v Criminal Injuries Compensation Authority & Secretary of State for Justice

Court of Appeal, 3 July 2018.

Gross LJ giving the leading judgment (Sharp LJ and Flaux LJ in agreement)

 

The Appellants, A and B are brothers and Lithuanian nationals who were trafficked to the UK in 2013 for the purpose of labour exploitation and abuse.

Their applications for criminal injuries compensation were rejected under a provision of the Criminal Injuries Compensation Scheme 2012 (para. 26 and Annex D) which provides that an award will not be made where an applicant has unspent convictions which resulted in a custodial sentence or community order.

A and B sought a judicial review of that decision on the basis that the provisions of the Scheme interfered with their rights under the European Convention on Human Rights, and that the provisions were in breach of Article 17 of the EU Directive on preventing and combatting trafficking in human beings and protecting its victims (EU Trafficking Directive).

Therefore, the issues for the Court of Appeal were: i) whether the terms of the Scheme were in breach of the EU Trafficking Directive, Article 17; and - ii) whether the terms of the Scheme fell within the ambit of Article 4 ECHR and amounted to unjustified discrimination under Article 14.

The Article 17 Ground centred upon the true construction of the words ‘access to existing schemes of compensation’ – a requirement of Article 17 to which all victims of human trafficking must be permitted. The Judge at first instance found that there was nothing in Article 17 which does more than require the UK to secure for victims of trafficking access to the Scheme with all of its rules and exclusions. The Appellants argued that, while Article 17 did not guarantee a victim an award of compensation, it did deny effective access to the Scheme to those for whom a previous conviction may have arisen from the very vulnerability that made them susceptible to trafficking. The Appellants argued that the effectiveness of the Scheme was undermined by rules and obstacles which rendered it practically impossible or excessively difficult to exercise rights conferred by EU law.

The Respondents argued that the Appellants had enjoyed access to the Scheme, but to suggest the Directive required a member state to extend additional rights to known serious criminals because they were subsequently trafficked was untenable: the ‘right in question’ was simply for victims to have their claim considered under the existing terms of the Scheme.

The Court of Appeal agreed with the Respondents and the Judge at first instance for five reasons:

  1. The wording of Article 17 is straightforward. The Appellants in this matter had access to the Scheme but were excluded by reason of their prior criminal convictions. They were not excluded by dint of being victims of trafficking.
  2. The obligation upon Member States is to create and maintain a funded Scheme to which victims can make an application for compensation. The arrangements for compensation and eligibility are a matter for national law, and those requirements make no call for the Scheme to be free from limiting or exclusionary terms, or any difference between the rights of victims of trafficking and other victims of violent crime.
  3. That the Appellants may have been vulnerable before they were trafficked was irrelevant. An argument that all those who were vulnerable prior to committing the very offence that excludes them from eligibility should be entitled to compensation was ‘hopeless’. It is impossible to conjure from the wording of Article 17 an argument for extending the right of those who would otherwise be excluded because they have been subsequently trafficked.
  4. The provisions of domestic law (Modern Slavery Act 2015) make sufficient safeguards to ensure that victims whose crimes arise from their own trafficking do not fall foul of the exclusionary rules (as required by the Directive, Article 8). In the present matter, the Appellants’ convictions pre-dated the trafficking and had no evidential nexus with it. The court reminded itself that the Appellants’ convictions were those resulting in custodial sentences – which is the point at which (along with community sentences) the exclusions under the Scheme bite.
  5. The Scheme did not impose a condition or obstacle which rendered access to the Scheme practically impossible or excessively difficult. Neither was the effectiveness of the Scheme fettered by any factor directly connected to their trafficking. The principle of effectiveness did not assist the Appellants – and purposive interpretation could not confer additional rights on them, not already granted by Article 17.

In respect of ground (ii):

The Appellants argued that the Scheme fell within the ambit of Article 4 ECHR which imposes an absolute prohibition against slavery, servitude and forced labour, and was discriminatory under Article 14. The Appellants argued that the rule constituted unjustifiable discrimination against those with unspent convictions. They argued that the rule was then to be subject to a proportionality analysis. In doing so, the Appellants argued that the legitimate aims of the Scheme would be properly met by ensuring that the claims officers had discretion to make individualised assessments of applicants “to ensure those receiving compensation were morally deserving of it”.

The Respondents argued that the Scheme did not fall within the ambit of Article 4. Further, that the Appellants failed at the Article 14 hurdle as they could not enjoy “other status” by means of having a sentence imposed upon them for committing a serious crime. The Respondents argued that the allocation of resources and eligibility of applicants for public funds was a matter for the Legislature and Executive, and the Court should be slow to intervene; further there was plainly a rational connection between the aim and the exclusionary rules of the Scheme.

In dismissing this Ground, the Court of Appeal addressed the issues within the three separate headings of (a) the ambit of Article 4 ECHR; (b) “other status” under Article 14, and (c) justification.

In respect of (a), the court doubted, after much consideration of the European jurisprudence, that the ambit of Article 4 stretched to the provision of State compensation. The Court was “troubled by the posited inexorable expansion (or perhaps extrapolation) of rights and duties … so that a straightforward ECHR prohibition on slavery and the like … somehow encompasses the terms of access to a national compensation scheme”. However, the Court stopped short of giving a final view on whether the terms of access to such a Scheme did fall within the ambit of Article 4 in light of its findings in respect of the other issues in this Ground. The Court therefore proceeded to consider the remaining issues (b) and (c).

In respect of (b) “other status”, the Court agreed with the Judge at first instance – the concept of an unspent conviction which is determined by a combination of the nature of the sentence passed, its length and the amount of the time which has elapsed from a relevant moment under the Rehabilitation of Offenders Act scheme, did enable the Appellants to enjoy an “other status”.

However, in respect of (c) justification (of the exclusionary rule), the test is whether any difference of treatment was “manifestly without reasonable foundation”. The Court was “amply persuaded” that it was not. The Court held that the complaint was belied by the Appellants’ own concession that “it is, in general, permissible to limit eligibility for compensation to those who are morally deserving of it”, and there is plainly a legitimate aim in doing so. The Court held that the measure adopted was rationally connected to that aim, not least as the convictions which triggered the exclusionary rule are those where offenders have ‘cost the society money through their offending behaviour’ in terms of custodial or community sentences. Gross LJ went on to state:

 “The exclusionary rule operates in the realm of social policy and the Scheme has been reviewed and approved by Parliament; the matter cries out for judicial restraint”.

The Court reviewed the Appellants’ narrower criticisms of the nuances of the Scheme. Given the legitimate aim of restricting eligibility to compensation to those morally deserving of it, and given the nuances included within the exclusionary rule, the Court held that it was difficult to see that the aim could have been achieved by a less intrusive measure, unless it was to be said that a discretion is a necessary condition. This, in the Court’s view was not an argument that could be accepted.  It found that the Scheme rules were justified and satisfied the proportionality analysis undertaken. In so far as the Court left open the question of the ambit of Article 4, Gross LJ concluded by stating that:

 “To the extent that the Appellants left open the possibility of a stand-alone claim pursuant to Article 4 ECHR, nothing in this judgment lends it support. The assumption that the Appellants’ claim came within the ambit of Article 4 does not at all signify that a claim alleging breach of Article 4 would have any foundation”.

Case summary written by Anna Roffey

Ben Collins QC and Robert Moretto of Old Square Chambers appeared for the Respondents at the hearing on 6 March 2018; Judgment handed down 3 July 2018.

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