A and B v Criminal Injuries Compensation Authority and another

Where a state voluntarily extends a criminal injuries compensation scheme to victims of trafficking, access to that scheme falls within the ambit of article 4 ECHR and must comply with article 14. Victim-of-trafficking status and possession of a relevant unspent conviction are each capable of constituting an “other status”.

A rule excluding applicants with unspent custodial or community sentences may nevertheless be justified. In a publicly funded social welfare scheme approved by Parliament, a clear exclusion based on the seriousness and age of convictions is proportionate where it pursues the legitimate aim of directing limited funds to deserving victims and is not manifestly without reasonable foundation.

The appellants were victims of human trafficking and labour exploitation. Each had previously received a custodial sentence in Lithuania for offending unrelated to the trafficking. Their applications under the Criminal Injuries Compensation Scheme were automatically refused because their convictions remained unspent.

Wilkie J dismissed their judicial review claim. The Court of Appeal dismissed their appeal in [2018] EWCA Civ 1534; [2018] 1 WLR 5361, holding that any discrimination was justified. The Supreme Court granted permission on whether the exclusionary rule unjustifiably discriminated against the appellants, contrary to article 14 read with article 4 ECHR.

1. Appeal dismissed unanimously. Lord Lloyd-Jones delivered the judgment, with which Lady Arden, Lord Hamblen, Lord Burrows and Lord Stephens agreed.

2. Article 4 ECHR does not clearly impose a general obligation on a state to compensate victims of trafficking perpetrated by private parties. Article 15(4) of the Council of Europe Convention on Action against Trafficking in Human Beings permits different domestic means of guaranteeing compensation and does not require a state compensation fund. It was unnecessary to reach a concluded view because the appellants succeeded on their alternative argument concerning ambit.

3. The compensation scheme fell within the ambit of article 4. Although the scheme was not confined to trafficking victims, it expressly extended protection to them and included provisions accommodating their position. That protection had more than a tenuous connection with article 4’s core value of protecting trafficking victims. Benefits voluntarily conferred within that ambit had to be provided without discrimination.

4. Being a victim of trafficking was an identifiable personal characteristic and therefore an “other status” under article 14. Having an unspent conviction resulting in a custodial or community sentence was also an “other status”. Such a sentence has incidents and consequences independent of the conduct which led to it. The status also existed independently of the challenged scheme because unspent convictions already carried consequences under the Rehabilitation of Offenders Act 1974 and other legislation.

5. The appellants were not entitled to different treatment merely because they were trafficking victims. Other serious crimes may have equally vulnerable victims and equally grave consequences. Victims compelled to offend because of trafficking might arguably require distinct treatment as “nexus offenders”, but the appellants’ offences preceded and were wholly unrelated to their trafficking. The efficacy of domestic non-punishment protections therefore did not arise.

6. The different treatment between trafficking victims with and without relevant unspent convictions was justified. The applicable standard was whether the measure was manifestly without reasonable foundation. The scheme concerned social welfare policy, finite public resources and moral and political judgments. It had also undergone consultation and parliamentary approval.

7. The exclusion pursued the legitimate aim of directing limited public funds to deserving and comparatively blameless victims. Its bright line was proportionate. Annex D adopted a graduated system reflecting sentence, seriousness, mitigation, elapsed time and rehabilitation. Clarity and consistency justified withholding individual discretion for the more serious convictions covered by paragraph 3 while retaining discretion for lesser convictions under paragraph 4.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The exclusionary rule was within the ambit of article 4 ECHR but its differential treatment was objectively justified: [2021] UKSC 27.
2. Court of Appeal: The appellants’ appeal was dismissed. The court assumed that access to the scheme fell within article 4, accepted “other status”, and held the discrimination justified: [2018] EWCA Civ 1534; [2018] 1 WLR 5361.
3. High Court, Administrative Court: Wilkie J dismissed the judicial review claim and granted permission to appeal: [2017] EWHC 2 (Admin).