Challenge to Criminal Injuries Compensation Scheme dismissed by Supreme Court
16 August 2021
On appeal from  EWCA Civ 1534
The claimants in the case were victims of human trafficking with unspent convictions in Lithuania. The Criminal Injuries Compensation Scheme (CICS) provides compensation to victims of crime, apart from where they have unspent criminal convictions (“the exclusionary rule”). The question for the Supreme Court was whether the exclusionary rule breached the claimants’ rights under Articles 4 and 14 of the European Convention on Human Rights. The Court found that the rule did not breach these rights.
The CICS is a statutory scheme established by the Secretary of State for Justice which permits compensation to be given to a person “if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence”. But this is subject to the exclusionary rule for a person with an unspent conviction for an offence with a custodial sentence.
The appellants, A and B, were Lithuanian nationals and twin brothers. They were convicted of burglary and theft respectively in 2010 and 2011. They were then trafficked to the United Kingdom in 2013, where they were abused and subjected to labour exploitation. The traffickers were convicted for these criminal offences in January 2016.
On 16 June 2016, the appellants applied for compensation under the CICS. A’s conviction for burglary only became spent in June 2020, while B’s conviction for theft became spent on 11 November 2016. Because at the time of their application to the CICS they both had unspent convictions, they were disqualified from receiving compensation. They brought a claim for judicial review against the Criminal Injuries Compensation Authority (CICA) and the Secretary of State for Justice.
In the High Court, it was found that although a person with an unspent conviction had an “other status” in the ambit of Article 14 ECHR, the exclusionary rule was not discriminatory. The claim that the exclusionary rule was a breach of Article 4 ECHR was also dismissed.
In the Court of Appeal, the appellants argued that the exclusionary rule was discriminatory contrary to Article 14 ECHR read with Article 4. The Court, however, dismissed their appeal. The Court did proceeded on the assumption that the CICS engaged the claimants’ Article 4 rights against slavery and held that unspent convictions constituted an “other status” under Article 14 ECHR, but also that this discrimination under the exclusionary rule was justified. The appeal was therefore also dismissed.
In the Supreme Court, the appellants renewed this challenge, arguing that the exclusionary rule under the CICS breached their rights under Article 14 when read with Article 4.
The appellants successfully established that they could bring an Article 14 claim when read in conjunction with Article 4 of the ECHR. The Court went further than the Court of Appeal and found that because the United Kingdom’s CICS applied to victims of trafficking, the appellants’ ECHR Article 4 protection against slavery and forced labour were concerned.
As Article 14 concerns discrimination on grounds such as sex, race, or “other status[es]” the appellants had to establish that they had “other status[es]” protected from discriminatory treatment. The Supreme Court accepted that being victims of trafficking and having unspent convictions resulting in custodial or community sentences were personal and identifiable characteristics which applied to A and B. These constituted “other statuses” for the purposes of Article 14.
The Court then turned to whether the exclusionary rule caused discrimination on these bases. The Court found that there was no feature of human trafficking which would require victims to receive different treatment from the CICA compared to victims of other serious crimes. However, in the case of people with unspent criminal convictions, the Court found that the CICS was discriminatory. There was a difference in the treatment of victims of trafficking with unspent convictions, and those without such convictions. The former were treated differently by being denied compensation because of the exclusionary rule.
Whether such differential treatment was justified would determine whether there was a breach of Article 14. The court used the test of whether the measure was “manifestly without reasonable foundation” (Stec v United Kingdom (2006) 43 EHRR 47). Here, as the CICS operated in the field of social welfare policy, the Supreme Court stated that they should be hesitant to override the decision-maker’s view. In addition, the statutory instrument had been reviewed by Parliament, and the discrimination did not concern any of the suspect grounds for discrimination such as race or sex. The Court therefore found that the differential treatment within CICS was justified and upheld the decisions of the Court of Appeal and High Court.
A and B applied for compensation in June 2016, but B’s conviction became spent in November that year. The CICS states that application for compensation must be made “as soon as it is reasonably practicable”, and normally no more than two years after the incident. This raises a question as to what the effect would have been if B had applied for compensation only a few months later. It is conceivable that victims in similar situations might delay an application until their convictions are spent. The effect, if any, that this might have on the CICA’s decisions as to whether applications are made “as soon as reasonably practicable” is unclear.
Secondly, a point emphasised by counsel for the claimants was that being a victim of trafficking was distinct from being a victim of a different crime. The Court, however, found that although people trafficking was recognised by several international instruments and fell within Article 4 ECHR, none of these required more favourable treatment to victims of the crime in the realm of state compensation. In this unanimous judgment, it was pointed out that the ECtHR has not yet found that Article 4 gives victims of trafficking a right to compensation from the state.
The Court’s finding may seem obvious when analysing simply what it means to be a victim of the crime of trafficking:
its victims, who are often vulnerable, can suffer grievously. However, many other crimes are no less serious, their victims equally vulnerable and the consequences they suffer at least as grievous. 
Yet it seems that this could easily have been decided the other way. Human trafficking is unique in the way in which it targets vulnerable individuals over a prolonged period of time. Indeed, it is a form of modern slavery. That is not to say that it makes victims more vulnerable than victims of other crimes, but it does make them uniquely vulnerable. It is a crime that comes under Article 4 of ECHR, and takes place across international borders – protected also by a number of international laws, as submitted by the claimants. Its uniquely vulnerable victims should surely be entitled to unique treatment under the CICS.
Notably, MPs debating the CICS raised concerns as to whether the scheme did enough for victims of trafficking, as victims of “one of the most distressing crimes anyone can suffer”. The oversight of trafficking victims in this case was, unfortunately, perhaps foreseeable. The question remains as to whether human trafficking will always be treated as analogous to other crimes as it was in this case by the Supreme Court. It is certainly open to the Supreme Court to decide that they are not analogous – especially if ECtHR case law should develop in this way.
Ticiana Alencar will start the Bar Course in the coming year and is particularly interested in public law.