Luck, human rights and the lottery winning rapist
27 April 2011
Iorworth HOARE v the United Kingdom – 16261/08  ECHR 722 (12 April 2011) – Read decision
Potential future US president Donald Trump once said that “Everything in life is luck“. Sometimes a case arises from such an unlikely factual scenario that it raises questions about the relationship between justice, fairness and luck. This is such a case.
Iorworth Hoare was convicted 1989 for attempted rape. He was a serial sex offender, so was sentenced to life imprisonment. As life in prison does not usually mean actual life in prison, he was released on 31 March 2005. In what could be considered a not quite minor reversal of Hoare’s deservedly poor fortune up to that point, in 2004, while on day release, he bought a National Lottery ticket, and won £7m. Home Office rules allowed prisoners in open conditions to play the lottery.
Meanwhile, the victim of the 1988 rape, Mrs A, found out about her attempted rapist’s lottery win. She had tried to sue him at the time but was unable to as he had no money. This was clearly no longer the case, so she tried again, 16 years after the event.
But suing someone for civil damages is not a lifelong right. Section 2 of the Limitation Act 1980 provides that you have to bring a claim in tort within 6 years of the date the cause of action accrued, and section 11 provides that for personal injuries, the time limit is 3 years. And here is the important bit. Section 33 provides that courts have the discretion to extent the time limit for personal injury claims if “it would be equitable” to do so. The time limits for torts which are not personal injuries cannot be extended.
A bad day in court
Hoare’s barrister – a QC – rightly advised him that whilst there was always a chance of losing, the case law was very clear that the Mrs A’s claim would be time-barred. This was right at the time, because in the 1993 case of Stubbings v Webb the House of Lords (now the Supreme Court) ruled that cases of deliberate assault or tresspass to the person fall under section 11, that is a 6 year time limit but with no discretion to extend. On the basis of that advice, Mr Hoare rejected an offer by Mrs A to settle the claim for around £25,000.
Mrs A’s claim was duly struck out by the High Court. That would have been the end of the matter, but for the House of Lords, which decided in the combined case of A v Hoare to reverse its own decision in Stubbings (1COR’s Lizanne Gumbel QC was for most of the appellants although not Mr Hoare). The UK’s highest court reversing its own decision may not be as unlikely as winning millions on the lottery, but it is not far off.
Lord Hoffmann, giving the judgment, cited a Law Commission review of the law on limitation which had branded Stubbings an “anomaly”. The problem had been that for the previous 10 or so years since the judgment, in the absence of any discretion under section 33, claimants such as Mrs A who had suffered assaults and abuse had been forced to find a way, if possible, around the strict 6 year time limit. And some claimants had resorted to blaming other people who had negligently allowed the abuse to occur, which led yet more arguments relating to the date they knew the negligence had occured. This, as Lord Hoffmann pointed out, was unsatisfactory to say the least:
If one asked an expert psychologist whether the claimant “really” knew about his injuries, I expect he would say that it depends on what you mean by “know”. And he might go on to say that if the question was whether he “knew” for the purposes of the Limitation Act, it would be better to ask a lawyer. In my opinion the subsection assumes a practical and relatively unsophisticated approach to the question of knowledge
The House of Lords ruled that claims such as Mrs A’s were in fact personal injury claims, and as such fell under section 11, not section 2. Following this unlikely judgment, Mrs A was given another chance to sue Hoare in the lower courts. She did so, a High Court judge duly used his discretion to extend the time limit, and awarded £50,000 in compensation. And, in addition, a cool £537,885.20 in legal costs, which added to the £239,583 Hoare had spent himself. An unlucky day in court.
To the European Court of Human Rights
Hoare took his case to the European Court of Human Rights. He claimed that the costs order imposed on him was an unlawful interference with his article 1 protocol 1 rights to the peaceful enjoyment of his property, and that under article 6 (the right to a fair trial) the fact that he had to pay for a change in the law was unfair. What he was really saying was that he was unlucky to be caught in the middle of a larger battle over UK law.
If Hoare had won, as a lottery winning convicted rapist, he may have been the most unpopular human rights winner yet. But it was not to be. In an admissibility decision, the court rejected Hoare’s argument that the House of Lords changing its mind amounted to a change in the law, as
however clearly drafted a legal provision may be, in any system of law, there is always an inevitable element of judicial interpretation. Equally, there will always be a need for elucidation of doubtful points and for adaptation to changing circumstances.
And, as the court had already observed in the unsuccessful attempt to challenge Stubbings in Strasbourg,
Contracting States enjoyed a margin of appreciation in regulating the right of access to a court. Accordingly, it concluded that there had been no violation of Article 6 on the ground that the rules of limitation… it was open to the domestic courts to interpret the rules of limitation in a way that was more favourable to victims of sexual abuse.
So the costs order, which interfered with Hoare’s possessions within the meaning of article 1 protocol 1, was lawful. Moreover, interference pursued a legitimate aim, as it was open to the domestic courts strictly to apply the costs follow the event rule “provided that due regard was given to the circumstances of the case, including whether any offer to settle had been made and the conduct of the parties during the proceedings“.
There was also “nothing in the file to suggest” that Hoare did not receive a fair trial. Indeed, his case was argued to the very highest level. He may have been unlucky to lose, but bad luck is not the same as unfairness.
A lucky break?
Mrs A spent years of her life trying to obtain justice against her attacker. She eventually succeeded, but only after the bizarre event of her attacker winning the lottery, and a highly unusual reversal by the UK’s highest appeal court of its own judgment. Some might consider that lucky. Mr Hoare won the lottery but then lost close to a million pounds defending a claim which he could have settled for a fraction of that amount. His luck ran out.
But another way of looking at this case is that it is often the most extreme factual scenarios which command the attention of the courts. They expose unfairness through an absurdly inflated situation generated by a particular decision or law. It is these cases which make it through the court system, as judges sit up and listen when presented by a factual scenario which amounts to legal pyrotechnics.
A v Hoare was such a case, where the bizarre twist of fate which led to Hoare winning the lottery whilst on day release from prison made the House of Lords realise the folly of its own previous judgment which had prevented claimants such as Mrs A from suing their attackers. It is doubtful whether Mrs A would consider herself lucky in relation to any of the sad events leading up to her win. At least the unfairness of her inability to sue out of time was eventually reversed. Others are not so lucky, as former injustices are not always resolved. But Hoare’s rejection at the European Court of Human Rights shows that not everything in our justice system, to paraphrase Trump, comes down to luck.
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