A & Anor. v Criminal Injuries Compensation Authority & Anor.

Article 17 of Directive 2011/36/EU requires trafficking victims to have access to the existing compensation scheme for victims of violent crimes. It does not require an award, a separate scheme, or exemption from lawful eligibility rules. A scheme excluding applicants with relevant unspent convictions was not discriminatory under Article 14 ECHR. The exclusion pursued the legitimate aim of limiting taxpayer-funded compensation to morally deserving applicants and was not manifestly without reasonable foundation. The absence of a claims officer’s discretion did not make the rule disproportionate. Domestic safeguards, including the statutory defence for trafficking victims and judicial powers concerning prosecution, conviction and sentence, addressed cases where offending resulted from trafficking.

The appellants, Lithuanian twin brothers, were recognised as victims of trafficking after being exploited in the United Kingdom. Before their trafficking, each had received an unspent custodial conviction in Lithuania. Their applications for compensation were refused under paragraph 26 and Annex D of the Criminal Injuries Compensation Scheme 2012.

Wilkie J dismissed their judicial review claims: [2017] EWHC 2 (Admin). On appeal, the appellants pursued arguments under Article 17 of Directive 2011/36/EU and Article 14 ECHR read with Article 4. The central issues were whether the exclusionary rule denied effective access to compensation and whether it unjustifiably discriminated against trafficking victims or persons with relevant unspent convictions.

1. Appeal dismissed. The Court unanimously agreed with Gross LJ’s judgment.
2. Article 17 required access to the existing compensation scheme, not an entitlement to compensation or immunity from its lawful exclusions. The Scheme’s provisions extending eligibility to trafficking victims ensured access. The appellants’ claims had been capable of being made and considered under the Scheme, although their prior convictions triggered the exclusionary rule.
3. Domestic law provided safeguards for victims whose offending was compelled by trafficking. Section 45 of the Modern Slavery Act 2015 supplied a defence. The courts could stay a prosecution or quash a conviction as an abuse of process, and sentencing powers enabled the circumstances of trafficking to be taken into account. Such safeguards meant that genuine victims should not ordinarily be excluded because of compelled offending.
4. The Court left unresolved whether access to the Scheme fell within the ambit of Article 4 ECHR. It proceeded on the assumption, favourable to the appellants, that Article 14 was engaged. Relevant unspent convictions constituted an other status, notwithstanding Clift HL; the present issue was distinguishable from that case and the later Strasbourg decision in Clift pointed the other way.
5. The applicable justification test was whether the Scheme was manifestly without reasonable foundation. The exclusionary rule pursued the legitimate aim of restricting public compensation to morally deserving victims, was rationally connected to that aim, and struck a fair balance. Parliamentary approval, resource allocation and social policy required substantial judicial restraint. The rule was graduated rather than indiscriminate: it targeted unspent convictions involving custodial or community sentences, preserved discretion for lesser sentences, and excluded specified minor road-traffic penalties.

• Court of Appeal (Civil Division): appeals dismissed in [2018] EWCA Civ 1534.
• High Court, Queen’s Bench Division: Wilkie J dismissed the judicial review claims in [2017] EWHC 2 (Admin).