Criminal injuries "family" claim fails despite ECHR argument success

A woman has failed in a court challenge to a refusal of her claim for criminal injuries compensation for childhood assaults by her mother, despite a judge accepting her argument of discrimination in terms of the European Convention on Human Rights.

Lord Burns in the Court of Session ruled that the Government was entitled for policy reasons not to backdate a change to the scheme in 1979 under which for the first time, claimants became entitled to compensation for injuries caused by someone living as a member of the same family.

The claim was made by MA, who was assaulted in 1968 and 1973, when she was aged three months and five years respectively, by her mother, who was later convicted of these offences. Her claim was refused by the Criminal Injuries Compensation Authority because of an exculsion under the 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).

MA argued that the exclusion in the scheme, and the decision in her case, were unlawful, being discriminatory within article 14 of the Convention in relation to her claim, which was a possession within article 1 of Protocol 1.  The Government argued among other things that MA had no enforceable claim and therefore no possessory right under article 1, and in any event there was no basis on which she could be said to be discriminated against, as co-residence was not a personal characteristic.

Lord Burns recognised that comments in the Inner House case of DJS (2007) supported the Government's position, but more recent UK Supreme Court decisions in RJM (2009) and Mathieson (2015) had accepted a European ruling (Stec) that the concept of "possessions" should be interpreted in a way consistent with the concept of pecuniary rights, and if a right to payments was created, it had to be done in a way compatible with article 14. The principle was not confined to social security benefits.

There had also been discrimintion. "It is an arid exercise to identify the precise characteristics of the persons with whom the claimants should be compared", Lord Burns said. "There must be a difference in treatment of persons in 'otherwise similar situations' (Stec, para 51). The petitioner is a victim of violent crime perpetrated when she was a child. Because she was assaulted by her mother in the family home she is denied compensation under the same roof rule. If her mother had assaulted a friend of the complainer’s at the same time, that child would be entitled to advance a claim. Both would be child victims of violent crime. That is enough in my view to demonstrate a difference in treatment between persons in 'analogous situations'."

However "The offending rule is one for which there was thought by the state to be justification in the scheme as originally framed in 1964 on the basis of difficulties of proof and a fear that the offenders might benefit from awards given. That was rational and understandable. When criticism was made of the rule in 1972 as being unjust, the government’s response was to make a prospective change but to retain the rule for injuries inflicted before 1 October 1979. That was done because of the difficulty in estimating the cost of wholesale abolition...

"[The rule] produces hard cases for those falling on the wrong side of the relevant date such as the petitioner. However, the change has benefited claimants, injured after the relevant date, who would not otherwise be eligible... Having regard to [the factors considered at the time] and the deference the court should pay to policy decision of this sort in an area of general public interest, I am unable to conclude that the same roof rule contained in the 1979 Scheme is manifestly without foundation. It is a proportionate response to the criticisms made of the rule and one within the legitimate exercise of the discretion accorded to Parliament."

He therefore dismissed the petition.

Click here to view the opinion.