A and B, R (On the Application Of) v Criminal Injuries Compensation Authority

A statutory compensation scheme may use an exclusionary bright-line rule for applicants with unspent convictions, including where the rule leaves no discretion in exceptional cases. Where Parliament has approved the scheme, the court applies the proportionality framework but asks whether the legislative choice is manifestly without reasonable foundation. A conviction is part of the single process determining entitlement, so an applicant excluded by the scheme has no A1P1 possession which is then interfered with. Article 14 may nevertheless apply where the claim falls within the ambit of A1P1, and an unspent relevant conviction may constitute “other status”. Article 17 of the Anti-Trafficking Directive requires substantive access to the existing compensation scheme, not an entitlement to compensation outside its lawful eligibility rules.

Three joined judicial review claims challenged the 2012 Criminal Injuries Compensation Scheme. A had an unspent conviction resulting in a community order. EB and EC were victims of trafficking who had unspent convictions resulting in custodial sentences. The Criminal Injuries Compensation Authority refused compensation under paragraph 26 and Annex D, paragraph 3.

The claimants argued that the exclusion was incompatible with A1P1, Article 14 and, in the trafficking claims, Article 17 of Directive 2011/36/EU and Article 1 of Protocol 1 read with Article 4 ECHR. A also alleged that the Secretary of State had acted ultra vires and irrationally. The central issues were whether the scheme created a protected possession, whether the exclusion was justified, and whether the statutory and international instruments required a discretion or an award.

1. The claims were dismissed. The claimants did not possess an enforceable compensation claim under A1P1. The Scheme created a single determination of entitlement. Eligibility under paragraphs 4 to 21 and withholding provisions under paragraphs 22 to 29 operated together. An applicant never acquired an enforceable claim before the disqualification in Annex D was applied (paras [51]-[63]).
2. Article 14 was considered on the alternative assumption that there was an A1P1 possession. The claims fell within the ambit of A1P1. An unspent relevant conviction constituted “other status” for Article 14 purposes. The issue was wider than the sentence-length classification considered in Clift v Secretary of State for Justice, and the court was therefore not bound by that decision on the precise issue (paras [64]-[80]).
3. The proportionality exercise involved four questions: legitimate aim, rational connection, less intrusive means, and fair balance. Because the challenge was to a scheme approved by affirmative resolutions of both Houses of Parliament, the relevant question was whether the legislative choice was manifestly without reasonable foundation (paras [81]-[88]).
4. Directing limited taxpayer-funded compensation towards applicants regarded as blameless was a legitimate aim. The exclusionary rule was rationally connected to that aim. Although paragraph 3 of Annex D contained no residual discretion, the scheme included nuance through the seriousness of the sentence, the rehabilitation period, the date on which the conviction became spent, the discretion under paragraph 4, and the treatment of minor convictions under paragraph 5. The omission of an exceptional-case discretion was not manifestly without reasonable foundation (paras [89]-[112]).
5. The word “may” in section 3(1)(a) of the Criminal Injuries Compensation Act 1995 permitted a scheme under which an award had to be withheld once specified conditions were met. It did not require the ultimate decision-maker to retain a discretion in every case (paras [113]-[118]).
6. Article 17 of Directive 2011/36/EU required victims of trafficking to have access to the existing compensation scheme and substantive consideration of their claims under its rules. It did not require compensation regardless of lawful eligibility criteria or require the United Kingdom to alter the scheme so that excluded applicants could obtain awards (paras [119]-[133]).
7. Article 4 ECHR, even informed by ECAT, did not create a wider entitlement to compensation. The claims of the trafficking victims therefore failed on their additional grounds. Failure to pursue review and First-tier Tribunal appeal would not have barred judicial review because the challenge was to the legality of the scheme itself and those routes would have been futile (paras [134]-[160]).

Each claim was dismissed on every ground advanced (para [162]).

First-instance joined judicial review claims in the Administrative Court. No earlier appellate decision is stated in the judgment.