![[2023] UKUT 239 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
The FtT decision
The FtT decision
The FtT provided a comprehensive decision in which they considered the 2012 Scheme, the parties submissions, A&B and the 4 stage test in relation to Article 14 as set out by Lady Hale in R (DA) v Secretary of State for Work and Pensions (Shelter Children’s Legal Services intervening) [2019] 1 WLR 3289 (para 136) and referred to above.
The FtT ultimately found there was no breach of Article 14 taken together with either A1P1 or articles 3 and/or 8. It considered the decision of the Supreme Court in A&B was determinative of the issues they had to consider and that the Applicant’s case could not be distinguished from A&B. As such, the decision of the Supreme Court was binding on the FtT and it could reach no decision other than to dismiss the appeal, applying paragraph 26 and Annex D of the 2012 scheme.
The FtT ‘s key findings were;
Ambit
A right to compensation under the Scheme falls within A1P1(para 47). This was common ground between the parties and was established in JT v CICA [2019] 1 WLR 1313 which was binding on the FtT. The FtT also found a right to compensation under the scheme to victims of CSA fell within the ambit of Articles 3 and 8 of ECHR (para 51).
Status
The FtT found being a person with unspent convictions constituted an “other status” (para 54) and being a victim of CSA was also an “other status” for the purposes of Article 14 (para 57).
Difference in treatment.
Victims of CSA with unspent convictions are not entitled to preferential treatment over victims of other types of crime with unspent convictions (paras 59,60,63).This relates to ground two. The FtT agrees the Scheme treats persons with unspent convictions differently to those without unspent convictions but this will only amount to unlawful discrimination if it cannot be justified (para 64) .
Justification
The FtT found the test to be applied was whether or not the difference in treatment was manifestly without reasonable foundation (para 65). The FtT also concluded the operation of the exclusionary rule in the Applicant’s case was justified (para 72).
- Heading
- The application for judicial review is dismissed
- Grounds for Judicial Review
- The hearing of the judicial review application
- Factual background
- The Law
- The 2012 Criminal Injuries Compensation scheme and the exclusionary rule
- “ Annex D sets out the circumstances in which an award under this Scheme will be withheld or reduced because the applicant to whom an award would otherwise be made has unspent convictions.”
- The Decision of the Supreme Court in A & B v CICA [2021] UKSC 27
- The parties arguments in summary
- The FtT decision
- Discussion and analysis of the FtT decision
- Protocol 1, Article 1: Protection of property
- Everyone has the right to respect for his private and family life, his home and his correspondence There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a
- “ without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or oth
- Third stage: Difference in treatment
- “I readily accept that people trafficking is a particularly grave crime and that its victims, who are often vulnerable, can suffer grievously. However, many other crimes are no less serious, their vic
- The “nexus offender “argument
- “For present purposes, I am willing to assume that it is arguable that victims of people trafficking who have committed criminal offences in connection with their being trafficked - who might be terme
- Does the applicant come within the category of “ nexus offender”?
- The blameless victim
- Fourth stage; Justification
- “This is clearly a legitimate aim.”
- “I consider, therefore, that the difference in treatment on grounds of other status resulting from Annex D is justified. The measure has the legitimate objective of limiting eligibility to compensatio
- at paragraphs 65-72. In particular, it refused to distinguish A&B on the three grounds advanced by the applicant’s counsel On the basis the offending may have been caused by being a victim of CSA as a child. I will refer to this as the “nexus argumen
- Conclusions