R v Criminal Injuries Compensation Board, Ex parte P (R v Criminal Injuries Compensation Board, Ex parte G, G, Ex parte, P, Ex parte)

Executive schemes established without statutory authority may be subject to judicial review, even where they distribute public funds under prerogative or analogous powers. The court must distinguish jurisdiction from justiciability. The subject matter, nature of the decision, basis of challenge, applicant’s interest and remedy sought are relevant. Decisions involving high policy and the allocation of limited resources may lack judicially manageable standards. However, a scheme is not immune from review merely because it is described as ex gratia or funded through parliamentary appropriations. The appeals failed because the exclusion of claims for family violence occurring before 1 October 1979 was not shown to be irrational.

P and G, both victims of childhood sexual abuse by family members, sought judicial review of decisions refusing compensation under the Criminal Injuries Compensation Scheme for incidents occurring before 1 October 1979. The 1969 Scheme excluded compensation where victim and offender lived together as members of the same family. The 1979 Scheme removed that exclusion prospectively, while the 1990 Scheme preserved the 1969 rule for pre-1 October 1979 injuries.

The Divisional Court dismissed both applications on 28 April 1993. The appeals concerned whether the court had jurisdiction to examine the legality of the non-statutory Scheme, whether the issue was justiciable, and whether maintaining the temporal exclusion was irrational.

1. Jurisdiction. The court had jurisdiction to examine the legality of a non-statutory compensation scheme established by executive action or prerogative power. Parliamentary approval of the funding through annual appropriations did not give the Scheme statutory force or create a constitutional bar to judicial review.
2. Justiciability. Lord Justice Neill considered that the challenged exclusion involved competing claims on public funds and the allocation of economic resources, for which the court had no judicially manageable standards. Lord Justice Evans, with whom Lord Justice Peter Gibson substantially agreed, rejected the view that the subject matter was necessarily non-justiciable. The question had to be decided by reference to the nature and subject matter of the decision. A scheme administered by an independent body on a judicial or quasi-judicial basis was capable of being reviewed.
3. Irrationality. All three judges agreed that the appellants had not established irrationality. The prospective operation of the 1979 Scheme was consistent with the general approach that new government measures operate prospectively. The decision could also reflect the evidential and administrative difficulties of family violence claims and the allocation of limited resources. It could not be shown that no rational Secretary of State could have retained the pre-1979 exclusion.
4. The court did not decide whether applicants under an ex gratia scheme possessed rights or legitimate expectations beyond an entitlement to fair administration according to the Scheme.

The appeals were dismissed. Legal aid taxation was ordered.

• Court of Appeal: Appeals dismissed. The court upheld the Divisional Court’s orders dated 28 April 1993.
• Divisional Court, Queen’s Bench Division: Applications for judicial review dismissed.