A AND B V CICA AND SECRETARY OF STATE FOR JUSTICE [2018] EWCA Civ 1534
FACTS:-
The Applicants were twin brothers from Lithuania. A was convicted in Lithuania of burglary on the 6th June, 2010 and was sentenced to 3 years' imprisonment. B was convicted in Lithuania of theft on the 11th December, 2011 and was sentenced to 11 months' imprisonment. In 2013, they were trafficked from Lithuania to the United Kingdom. They applied to the CICA for compensation under the Scheme on the 16th June 2016. 13. At the time of their application, each Applicant had an unspent conviction which resulted in a custodial sentence. On the 7th July, 2016, the CICA Claims Officer wrote to each of the Appellants, refusing to make an award of compensation for their criminal injuries, relying on paragraph 26 of and Annex D to the Scheme. They applied immediately for judicial review against the CICA on the following grounds :-
i) The CICA Rules constituted a disproportionate interference in the Applicants’ rights under Article 1 of Protocol 1 ("A1P1") to the European Convention on Human Rights ("ECHR").
ii) The CICA Rules were unjustifiably discriminatory contrary to A1P1 read together with Art. 14 of the ECHR.
iii) They were in breach of Art. 17 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims ("the Directive").
iv) They were in breach of A1P1 read together with Art. 4 of the ECHR.
The judge rejected all four grounds but granted permission to appeal. The matter came before the Court of Appeal.
JUDGMENT:-
Lord Justice Gross with whom Sharp LJ and Flaux LJ considered the Criminal Injuries Compensation Act 1995, which provided that the CICA Scheme could include provision for withholding an award. The Scheme did provide for compensation for victims of human trafficking.
The Council of Europe Convention on Action against Trafficking in Human Beings, of 2005 ("ECAT"), entered into force in respect of the United Kingdom on 1 April 2009. Article 15 dealt with "Compensation and legal redress" and provides that signatories should provide and guarantee compensation for victims of trafficking. Article 26 was headed "Non-punishment provision". It said that signatories should provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.
The Directive, which built upon ECAT and adopted the same approach, said that Member States of the European Union should provide for resources to support victim assistance, support and protection. Article 8 said that Member States should, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities were entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they had been compelled to commit. Article 17 provided that Member States should ensure that victims of trafficking in human beings had access to existing schemes of compensation to victims of violent crimes of intent.
Gross LJ rejected this argument. The mandatory exclusion for unspent convictions resulting in custodial or community sentences contained in paragraph 26 and Annex D, para. 3 of the Scheme (“the exclusionary rule”) did not give rise to a breach of Article 17 of the Directive. Victims of trafficking were not denied access to the Scheme at all, or the right to recover. It was their criminal convictions predating their recovery that precluded them from recovery.
The essential thrust of ECAT was that arrangements for compensation were left to national law; they contained nothing whatever calling for victims of trafficking to enjoy rights under national compensation schemes free of any limiting or exclusionary terms and not enjoyed by other potential applicants for compensation who were not victims of trafficking.
The fact that the Appellants may have been "vulnerable" before they were trafficked was neither here nor there.
The more substantive question here went to whether the exclusionary rule shut out victims whose crimes arose from their own trafficking. Those concerns did not bear on the position of the Applicants, since their convictions pre-dated and had no evidential nexus with their trafficking. The provisions of domestic law in this jurisdiction provided amply sufficient safeguards to ensure that this was not the case. Victims whose crimes arose from their own trafficking should not fall foul of the exclusionary rule for the following reasons:-
· Section 45 of the Modern Slavery Act 2015 provided an express defence to trafficking victims compelled to commit an offence.
· The Court has power to protect victims of trafficking in respect of offences they have been compelled to commit by staying a prosecution or, if identification of a person as a victim of trafficking does not take place until after conviction, quashing a conviction as an abuse of process.
· The exclusionary rule was not triggered by a criminal conviction alone. The exclusionary rule only bit in more serious criminal cases where a custodial or community sentence was imposed.
· The exclusionary rule applied only to relevant unspent convictions.
· The starting point was to establish the right in question. That right required the Appellants to have access to the Scheme. They did. The Appellants were entitled to have their claims considered in accordance with the Scheme. They were. The exercise of the Appellants' right to do so was not rendered practically impossible or excessively difficult let alone by any factor connected to their trafficking. On no view was the very essence of the right impaired.
The ground of appeal related to discrimination. Gross LJ considered Articles 4 (freedom from slavery or servitude) and 14 (freedom from discrimination) of the ECHR. The absolute prohibition on slavery, servitude and forced labour in Article 4 seemed somewhat far removed from a consideration of the exclusionary rule under the Scheme. There was some marginal support from case law from the ECHR that there could be a link between Article 4, and the way in which a crime of trafficking was investigated by the police, and the compensation paid by perpetrators of trafficking. However, Gross LJ said that his strong inclination was that the Applicants were unable to establish that the terms of access to the Scheme fell within, or sufficiently, within the ambit of Article 4. However, such a decision could have wider consequences for other cases. Consequently, Gross J would say that the terms of access to the Scheme did fall within the ambit of Article 4.
In relation to Article 14, the discrimination Article 14, Gross LJ considered domestic and ECHR caselaw and said that this was Article was also engaged. Consequently, the issue was whether the exclusionary rule was justified. Gross LJ set out a number of principles. A difference in treatment on the ground of a relevant "other status" was only discriminatory if it had no objective and reasonable justification.
Gross LJ said that the exclusionary rule was justified and any attack on it for those with unspent relevant convictions was hopeless. It could not be said that the policy embodied in the exclusionary rule was without reasonable foundation or failed to strike a fair balance. It was, in general, permissible to limit eligibility for compensation to those who are morally deserving of it and the government had undertaken a proper consideration of that issue and how to implement it via the CICA Scheme. There was an element of discretion within the Scheme as to whether to withhold compensation on the grounds of previous convictions.
Consequently, the appeal would be dismissed.
FACTS:-
The Applicants were twin brothers from Lithuania. A was convicted in Lithuania of burglary on the 6th June, 2010 and was sentenced to 3 years' imprisonment. B was convicted in Lithuania of theft on the 11th December, 2011 and was sentenced to 11 months' imprisonment. In 2013, they were trafficked from Lithuania to the United Kingdom. They applied to the CICA for compensation under the Scheme on the 16th June 2016. 13. At the time of their application, each Applicant had an unspent conviction which resulted in a custodial sentence. On the 7th July, 2016, the CICA Claims Officer wrote to each of the Appellants, refusing to make an award of compensation for their criminal injuries, relying on paragraph 26 of and Annex D to the Scheme. They applied immediately for judicial review against the CICA on the following grounds :-
i) The CICA Rules constituted a disproportionate interference in the Applicants’ rights under Article 1 of Protocol 1 ("A1P1") to the European Convention on Human Rights ("ECHR").
ii) The CICA Rules were unjustifiably discriminatory contrary to A1P1 read together with Art. 14 of the ECHR.
iii) They were in breach of Art. 17 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims ("the Directive").
iv) They were in breach of A1P1 read together with Art. 4 of the ECHR.
The judge rejected all four grounds but granted permission to appeal. The matter came before the Court of Appeal.
JUDGMENT:-
Lord Justice Gross with whom Sharp LJ and Flaux LJ considered the Criminal Injuries Compensation Act 1995, which provided that the CICA Scheme could include provision for withholding an award. The Scheme did provide for compensation for victims of human trafficking.
The Council of Europe Convention on Action against Trafficking in Human Beings, of 2005 ("ECAT"), entered into force in respect of the United Kingdom on 1 April 2009. Article 15 dealt with "Compensation and legal redress" and provides that signatories should provide and guarantee compensation for victims of trafficking. Article 26 was headed "Non-punishment provision". It said that signatories should provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.
The Directive, which built upon ECAT and adopted the same approach, said that Member States of the European Union should provide for resources to support victim assistance, support and protection. Article 8 said that Member States should, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities were entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they had been compelled to commit. Article 17 provided that Member States should ensure that victims of trafficking in human beings had access to existing schemes of compensation to victims of violent crimes of intent.
Gross LJ rejected this argument. The mandatory exclusion for unspent convictions resulting in custodial or community sentences contained in paragraph 26 and Annex D, para. 3 of the Scheme (“the exclusionary rule”) did not give rise to a breach of Article 17 of the Directive. Victims of trafficking were not denied access to the Scheme at all, or the right to recover. It was their criminal convictions predating their recovery that precluded them from recovery.
The essential thrust of ECAT was that arrangements for compensation were left to national law; they contained nothing whatever calling for victims of trafficking to enjoy rights under national compensation schemes free of any limiting or exclusionary terms and not enjoyed by other potential applicants for compensation who were not victims of trafficking.
The fact that the Appellants may have been "vulnerable" before they were trafficked was neither here nor there.
The more substantive question here went to whether the exclusionary rule shut out victims whose crimes arose from their own trafficking. Those concerns did not bear on the position of the Applicants, since their convictions pre-dated and had no evidential nexus with their trafficking. The provisions of domestic law in this jurisdiction provided amply sufficient safeguards to ensure that this was not the case. Victims whose crimes arose from their own trafficking should not fall foul of the exclusionary rule for the following reasons:-
· Section 45 of the Modern Slavery Act 2015 provided an express defence to trafficking victims compelled to commit an offence.
· The Court has power to protect victims of trafficking in respect of offences they have been compelled to commit by staying a prosecution or, if identification of a person as a victim of trafficking does not take place until after conviction, quashing a conviction as an abuse of process.
· The exclusionary rule was not triggered by a criminal conviction alone. The exclusionary rule only bit in more serious criminal cases where a custodial or community sentence was imposed.
· The exclusionary rule applied only to relevant unspent convictions.
· The starting point was to establish the right in question. That right required the Appellants to have access to the Scheme. They did. The Appellants were entitled to have their claims considered in accordance with the Scheme. They were. The exercise of the Appellants' right to do so was not rendered practically impossible or excessively difficult let alone by any factor connected to their trafficking. On no view was the very essence of the right impaired.
The ground of appeal related to discrimination. Gross LJ considered Articles 4 (freedom from slavery or servitude) and 14 (freedom from discrimination) of the ECHR. The absolute prohibition on slavery, servitude and forced labour in Article 4 seemed somewhat far removed from a consideration of the exclusionary rule under the Scheme. There was some marginal support from case law from the ECHR that there could be a link between Article 4, and the way in which a crime of trafficking was investigated by the police, and the compensation paid by perpetrators of trafficking. However, Gross LJ said that his strong inclination was that the Applicants were unable to establish that the terms of access to the Scheme fell within, or sufficiently, within the ambit of Article 4. However, such a decision could have wider consequences for other cases. Consequently, Gross J would say that the terms of access to the Scheme did fall within the ambit of Article 4.
In relation to Article 14, the discrimination Article 14, Gross LJ considered domestic and ECHR caselaw and said that this was Article was also engaged. Consequently, the issue was whether the exclusionary rule was justified. Gross LJ set out a number of principles. A difference in treatment on the ground of a relevant "other status" was only discriminatory if it had no objective and reasonable justification.
Gross LJ said that the exclusionary rule was justified and any attack on it for those with unspent relevant convictions was hopeless. It could not be said that the policy embodied in the exclusionary rule was without reasonable foundation or failed to strike a fair balance. It was, in general, permissible to limit eligibility for compensation to those who are morally deserving of it and the government had undertaken a proper consideration of that issue and how to implement it via the CICA Scheme. There was an element of discretion within the Scheme as to whether to withhold compensation on the grounds of previous convictions.
Consequently, the appeal would be dismissed.