Appeal fails over criminal injuries "family" claim though ECHR point upheld

Appeal judges have upheld the refusal of a woman's claim for criminal injuries compensation for childhood assaults by her mother, despite the court accepting her argument of discrimination in terms of the European Convention on Human Rights.

Lord Justice Clerk Lady Dorrian, Lord Brodie and Lord Turnbull upheld the decision by Lord Burns a year age (click here for report) to refuse the claim by MA relating to assaults in 1968 and 1973, when she was three months and five years old respectively. The Criminal Injuries Compensation Authority had applied an exclusion under the compensation scheme "where the criminal injury was sustained before 1 October 1979 and the victim and the assailant were living together at the same time as members of the same family".

The "same family" rule was originally applied due to anticipated difficulty in establishing the facts, and to ensure that the compensation did not benefit the offender. It was changed following a recommendation that a claim should be allowed where an offender had been prosecuted (or there was good reason why no prosecution had taken place), but retained for pre-1979 cases. The justification given for the retention was the administrative burden and the difficulty in estimating the practical and financial consequences if it were not continued.

Before the appeal court MA argued that a recent emphasis on cost was ex post facto reasoning (arising after the decision); that it was speculative; and that cost alone did not justify discrimination. There had been no proper exercise of proportionality, balancing the interests of the state and the citizens. The Government cross appealed against the decision that there had been an interference with MA's property rights in terms of article 1 of Protocol 1 to the European Convention on Human Rights, as the European decision of Stec, relied on by the Lord Ordinary, applied only to welfare benefits.

Delivering the opinion of the court, Lady Dorrian said that the judgment in Stec was not expressed as being so limited, nor had later cases regarded it in that way. "The relevant test is whether, but for the discriminatory ground about which the applicant complains, he or she would have had a right enforceable under domestic law, in respect of the asset in question”, she observed, quoting from the case law.

As regards the exclusion, "The policy decision in question falls squarely within the field of socio-economic policy and the allocation of finite resources. For these reasons, we consider that it is appropriate to accord a wide margin of discretionary judgment to the legislature in respect of the decision in question."

It was not correct to say that cost considerations represented ex post facto reasoning. Nor was it correct that such considerations could never be sufficient: "only that in certain circumstances a justification based only on budgetary constraints may be more difficult to make out".

"The discriminatory provision pursued a legitimate aim, which was to ensure long term sustainability of the scheme", Lady Dorrian concluded.  "The means employed was proportionate in order to avoid exposure to claims of unknown dimensions and unreasonably to increase the administrative burden, thereby shielding future sustainability. The restriction of the scheme was a prudent policy decision concerning the allocation of finite resources in a matter of socio-economic policy. Neither the aim, nor the means employed, can be said to be manifestly without reasonable foundation, and there is no basis upon which the court may interfere."

Click here to view the opinion of the court.