RP AND TG V HOME OFFICE AND CICB UNREPORTED 4TH MAY 1994 COURT OF APPEAL
CICA
FACTS:-
RP was born in 1962 and TG was born in 1964. Both were victims of sexual abuse at the hands of their stepfather when they were children. TG suffered the abuse between 1971 and 1982, and RP between 1967 and 1976. They made applications to the Criminal Injuries Compensation Board in 1990, but their claims were rejected on the grounds that the abuse had occurred prior to the 1st October 1979, and that abuse had been perpetrated by a member of their own family. TG was awarded £5,000 for the period after 1979.
Both sought judicial review of the CICB’s decision. The matter came before the Court of Appeal.
HELD:-
Lord Justice Neill considered the history of the various CICB Schemes. The exclusion in respect of offences committed against persons in the same household as the offender, had been very substantially modified with the passage of time.
Paragraph 7 of the 1969 Scheme provided:-
“Where the victims who suffered injuries and the offender who inflicted them were living together at the time as members of the same family, no compensation will be payable. For the purposes of this paragraph where a man and a woman were living together as man and wife they will be treated as if they were married to one another.”
In 1979 a new Scheme was implemented, which took effect from the 1st October 1979. This removed the complete exclusion of claims in respect of family violence where the injuries were incurred on or after the 1st October 1979. However the amendment was not retrospective. This case was governed by Paragraph 8 of the 1990 Scheme, which applied to all applications for compensation received by the Board on or after 1st February 1990. Paragraph 8 of that Scheme amended the rule in relation to abusers living with the victim as a member of the family. However once again, Paragraph 28 of the 1990 Scheme specifically excluded same family member injuries before the 1st October 1979 and said that Paragraph 7 of the 1969 Scheme would continue to apply.
Neill LJ concluded that he should approach the competing arguments from the parties by answering the following questions.
1) Did the court have jurisdiction to examine the legality of the scheme?
2) Was the issue of the government acting lawfully in excluding these claims, justiciable?
3) Had the Applicants any right or legitimate expectation to receive compensation in respect of any offence committed before October 1979?
4) Was the decision of the government to exclude claims in respect of offences committed before October 1979 irrational?
Neill LJ said that in general the court did have jurisdiction to entertain the question of legality. In relation to justiciability, the decision as to the scope and terms of the various CICB schemes were taken under prerogative or analogous powers, rather than statute. The complaint here was that the decision to maintain the old exclusion rule in force in respect of offences committed before 1st October 1979 was arbitrary and irrational. The decisions made here involved a balance of competing claims on the public purse and the allocation of economic resources which the court was ill equipped to deal with. Consequently they were not justiciable.
In relation to “legitimate expectation”, there was no need to consider this point in view of the decision on justiciability above.
In relation to irrationality, again it was not necessary to deal with this point, although Neill LJ said that in his view the cases would fail on this ground also.
Therefore these appeals would be dismissed.
Lord Justice Evans said that he was particularly influenced by the fact that the original 1964 scheme was limited to claims made in respect of injuries caused after the relevant date. It was impossible to say that this is or was an irrational feature either of the original or the revised schemes.
He agreed that the courts did have jurisdiction over this matter. However he did not agree with Neill LJ on the issue of justiciability. A scheme that was administered by an independent body of persons on a judicial or quasi-judicial basis seemed to be almost the epitome of an executive or administrative decision that was amenable to review by the courts.
In relation to legitimate expectation, it was unnecessary to express any conclusion on this issue.
Nonetheless the complaint of irrationality was not made out.
Lord Justice Gibson agreed. He accepted that the court had jurisdiction to consider the legality of the CICB scheme and any revision to it. He found it impossible to say that the measure to change the terms of the Scheme in 1979 was irrational. To have allowed the Scheme to be retrospective would inevitably have had some effect on resources.
CICA
FACTS:-
RP was born in 1962 and TG was born in 1964. Both were victims of sexual abuse at the hands of their stepfather when they were children. TG suffered the abuse between 1971 and 1982, and RP between 1967 and 1976. They made applications to the Criminal Injuries Compensation Board in 1990, but their claims were rejected on the grounds that the abuse had occurred prior to the 1st October 1979, and that abuse had been perpetrated by a member of their own family. TG was awarded £5,000 for the period after 1979.
Both sought judicial review of the CICB’s decision. The matter came before the Court of Appeal.
HELD:-
Lord Justice Neill considered the history of the various CICB Schemes. The exclusion in respect of offences committed against persons in the same household as the offender, had been very substantially modified with the passage of time.
Paragraph 7 of the 1969 Scheme provided:-
“Where the victims who suffered injuries and the offender who inflicted them were living together at the time as members of the same family, no compensation will be payable. For the purposes of this paragraph where a man and a woman were living together as man and wife they will be treated as if they were married to one another.”
In 1979 a new Scheme was implemented, which took effect from the 1st October 1979. This removed the complete exclusion of claims in respect of family violence where the injuries were incurred on or after the 1st October 1979. However the amendment was not retrospective. This case was governed by Paragraph 8 of the 1990 Scheme, which applied to all applications for compensation received by the Board on or after 1st February 1990. Paragraph 8 of that Scheme amended the rule in relation to abusers living with the victim as a member of the family. However once again, Paragraph 28 of the 1990 Scheme specifically excluded same family member injuries before the 1st October 1979 and said that Paragraph 7 of the 1969 Scheme would continue to apply.
Neill LJ concluded that he should approach the competing arguments from the parties by answering the following questions.
1) Did the court have jurisdiction to examine the legality of the scheme?
2) Was the issue of the government acting lawfully in excluding these claims, justiciable?
3) Had the Applicants any right or legitimate expectation to receive compensation in respect of any offence committed before October 1979?
4) Was the decision of the government to exclude claims in respect of offences committed before October 1979 irrational?
Neill LJ said that in general the court did have jurisdiction to entertain the question of legality. In relation to justiciability, the decision as to the scope and terms of the various CICB schemes were taken under prerogative or analogous powers, rather than statute. The complaint here was that the decision to maintain the old exclusion rule in force in respect of offences committed before 1st October 1979 was arbitrary and irrational. The decisions made here involved a balance of competing claims on the public purse and the allocation of economic resources which the court was ill equipped to deal with. Consequently they were not justiciable.
In relation to “legitimate expectation”, there was no need to consider this point in view of the decision on justiciability above.
In relation to irrationality, again it was not necessary to deal with this point, although Neill LJ said that in his view the cases would fail on this ground also.
Therefore these appeals would be dismissed.
Lord Justice Evans said that he was particularly influenced by the fact that the original 1964 scheme was limited to claims made in respect of injuries caused after the relevant date. It was impossible to say that this is or was an irrational feature either of the original or the revised schemes.
He agreed that the courts did have jurisdiction over this matter. However he did not agree with Neill LJ on the issue of justiciability. A scheme that was administered by an independent body of persons on a judicial or quasi-judicial basis seemed to be almost the epitome of an executive or administrative decision that was amenable to review by the courts.
In relation to legitimate expectation, it was unnecessary to express any conclusion on this issue.
Nonetheless the complaint of irrationality was not made out.
Lord Justice Gibson agreed. He accepted that the court had jurisdiction to consider the legality of the CICB scheme and any revision to it. He found it impossible to say that the measure to change the terms of the Scheme in 1979 was irrational. To have allowed the Scheme to be retrospective would inevitably have had some effect on resources.