A and B v Criminal Injuries Compensation Authority and another

The Supreme Court considered whether the exclusionary rule in paragraph 26 and Annex D paragraph 3 of the Criminal Injuries Compensation Scheme 2012, which disqualifies applicants with certain unspent convictions (custodial or community sentences), unjustifiably discriminated against victims of human trafficking in breach of Article 14 read with Article 4 of the European Convention on Human Rights. The court accepted that the Scheme’s benefits conferred on victims of trafficking fall within the ambit of Article 4 and that both being a victim of trafficking and having an unspent conviction for the specified sentences can amount to an "other status" under Article 14.

However, the court rejected the appellants’ twofold discrimination complaint: first, that victims of trafficking generally should be treated differently from other victims of crime (the court held the appellants’ convictions predated and were unconnected to their trafficking, so they were not in the special ‘‘nexus’’ subgroup of victims who committed offences as a consequence of trafficking); and second, that treating victims of trafficking with relevant unspent convictions differently from other victims of trafficking was unjustified. Applying the Convention margin of appreciation and the proportionality test (formulated here as whether the measure was "manifestly without reasonable foundation"), the court held the exclusionary rule pursued a legitimate aim (allocation of limited public funds to deserving victims) and was a proportionate, rational, and Parliament-approved means of achieving it. The appeal was dismissed.

The appellants, twin brothers from Lithuania who were recognised victims of trafficking and labour exploitation in the United Kingdom, applied to the Criminal Injuries Compensation Authority in 2016 for awards under the 2012 Criminal Injuries Compensation Scheme (CICS). Both had prior unspent convictions in Lithuania resulting in custodial sentences. Their applications were refused under the CICS exclusionary rule (paragraph 26 and Annex D paragraph 3) which disqualifies applicants with certain unspent convictions. They brought judicial review proceedings challenging the lawfulness of that exclusion on multiple grounds, principally that it discriminated contrary to Article 14 when read with Article 4 ECHR, and that it conflicted with obligations under the EU Directive 2011/36/EU and the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT).

The litigation history was: dismissal by Wilkie J in the High Court ([2017] EWHC 2 (Admin)); dismissal by the Court of Appeal ([2018] EWCA Civ 1534); permission to appeal to the Supreme Court was granted on the Article 14/Article 4 point, which the Supreme Court heard.

The central issues framed by the Supreme Court were: (1) whether the subject-matter of the complaint fell within the ambit of Article 4 ECHR so as to engage Article 14; (2) whether the appellants held an "other status" for the purposes of Article 14 (both as victims of trafficking and as persons with relevant unspent convictions); (3) whether there was differential treatment of persons not sharing that status; and (4) if so, whether that differential treatment was objectively and reasonably justified.

The court reasoned that the CICS, insofar as it confers particular benefits on victims of trafficking, falls within the general ambit of Article 4. It accepted both that victim of trafficking and having an unspent conviction of the specified kind can amount to "other status" under Article 14. The claim was analysed in two ways: (a) victims of trafficking with relevant unspent convictions compared with other victims of crime; and (b) among victims of trafficking, those with relevant unspent convictions compared with those without. The court rejected the first limb because the appellants’ convictions predated and were unrelated to their trafficking; they were not ‘‘nexus’’ offenders compelled to commit offences in consequence of being trafficked. As to the second limb, the court accepted that Annex D draws a bright line but held that the policy objective—to channel limited public funds to those regarded as blameless—and the nuanced structure of Annex D (distinguishing sentence types, allowing discretion in respect of lesser unspent convictions, and operating together with rehabilitation rules) provided a legitimate aim and a proportionate means. The contested measure was therefore not "manifestly without reasonable foundation" and fell within the state’s margin of appreciation. The court also considered international instruments (ECAT, the EU Directive) and Strasbourg jurisprudence (including Rantsev and related authority) and concluded that neither ECAT nor Article 4 has been construed as imposing a general state obligation to provide financial compensation to trafficking victims from public funds; those instruments do not require a more favourable national compensation entitlement for trafficking victims than for other victims. The appeal was dismissed.

The judgment emphasised the relevance of the rehabilitation regime, Parliament’s approval of the Scheme, the need for clear rules in welfare allocation, and the established margin of appreciation afforded to states in social policy.

The appeal was dismissed. The Supreme Court held that (1) the CICS, insofar as it confers benefits on victims of trafficking, falls within the ambit of Article 4 ECHR so that Article 14 may apply; (2) being a victim of trafficking and having an unspent conviction of the specified kind can each amount to an "other status" for Article 14 purposes; but (3) the appellants’ complaints failed on the merits: the exclusionary rule did not unlawfully discriminate because (a) the appellants were not nexus offenders whose offending flowed from their trafficking, and (b) excluding victims with unspent custodial or community sentences from awards pursues a legitimate aim and is not manifestly without reasonable foundation, given the Scheme’s objective, its graduated approach to convictions and sentences, Parliament’s role and the margin of appreciation in social-welfare policy.

Judicial review heard and dismissed by Wilkie J, [2017] EWHC 2 (Admin). Appeal to the Court of Appeal dismissed, [2018] EWCA Civ 1534. Permission to appeal to the Supreme Court was granted; the Supreme Court gave final judgment dismissing the appeal, [2021] UKSC 27.