Court of Appeal: Barrier to compensation under the ‘same household rule’ unlawfully discriminated against victim



A woman who had her application for criminal injury compensation refused due to the “same household rule” has succeeded in the Northern Ireland Court of Appeal.

Dismissing the cross-appeal brought by the Department of Justice, the Court said that there was “no justifiable, rational or lawful ground for requiring some victims of violent crime to forgo an otherwise valid claim for compensation in order that funds may be saved for distribution to other claimants whose circumstances are equally, or possibly less, deserving of support”.

Background

From 1979 to 1980, when the applicant was aged between 9 and 11, she was subjected to physical and alleged sexual abuse at the hands of her father’s partner. In 2008, the applicant reported her abuse to the police and in 2013, the assailant pleaded guilty to several counts of child cruelty and assault occasioning actual bodily harm – after pleading guilty on these counts, the charges related to alleged sexual abuse were ‘left on the books’.

Thereafter the applicant sought criminal injury compensation pursuant to the Northern Ireland Criminal Injury Compensation Scheme 2009, however, her application was refused and her appeal to the Criminal Injuries Compensation Appeals Panel for Northern Ireland (CICAPNI) was also refused.

The CICAPNI said that no compensation could be paid under the terms of para 7(c) of the Northern Ireland Criminal Injury Compensation Scheme 2009 – which ‘acts as a complete bar to eligibility to apply for compensation where the injury was sustained before 1st July 1988 and the victim and assailant were living together at the time as members of the same family’ (the ‘same household rule’).

The ‘same household rule’ is an exclusion which was introduced along with the first criminal injury compensation scheme in NI under the Criminal Injuries to Persons (Compensation) Act 1968.

The ‘same household rule’ was revised by the Criminal Injuries (Compensation) (Northern Ireland) Order 1988, which provided that compensation could be paid if the Secretary of State was satisfied that:

  • The assailant was prosecuted or there was sufficient reason why he/she was not prosecuted;
  • The assailant and victim ceased to live in the same household and unlikely to do so again;
  • No person responsible for causing the injury would benefit from the compensation.

However, this did not operate retrospectively, and therefore only related to claims made from the date the 1988 Order entered into force.

Similarly, neither the Criminal Injuries Compensation (Northern Ireland) Order 2002, nor the Criminal Injuries Compensation (Northern Ireland) Scheme 2009, amended the eligibility bar for those affected by the ‘same household rule’ prior to 1988.

Application for judicial review

The applicant brought judicial review proceedings against the CICAPNI (the decision maker) and the Department of Justice (responsible for the terms of the scheme since devolution in 2010).

The applicant complained that:

  • The decision refusing compensation for her injuries because of the same household rule was “inconsistent with and in violation of her rights at common law and/or under the ECHR”.
  • The rule created an unlawful fetter on the discretion of the decision makers dealing with compensation claims and operated “contrary to the purpose of the legislation which is to compensate the victims of crime”.
  • The operation of the rule unlawfully discriminated against her contrary to Article 14 in conjunction with Art 1 Protocol 1 (A1P1) ECHR, being indirectly discriminatory against women and having a disproportionately adverse impact upon female victims of crimes committed in the home.
  • The rule discriminated against her on the basis of an “other status”, namely that she was a member of the same household and/or same family as the perpetrator of the crimes against her.

In the High Court, the trial judge followed a 2017 decision in the Scottish courts, and ultimately concluded that discriminatory provisions which resulted from the rule pursued a legitimate aim, namely to ensure the long-term sustainability of the scheme.

Court of Appeal

Considering the applicant’s appeal, the Court of Appeal considered the following questions:

  1. Does the applicant have an interest in accessing the benefits of the 2009 scheme which is sufficient to qualify as a ‘possession’ for the purposes of A1P1?
  2. If so, has she been excluded from access to that possession on a discriminatory basis?
  3. If so, what is the discriminatory basis?
  4. If she has been discriminated against, is the discriminatory treatment justified in all the circumstances of the case?

The Court held that payments under the scheme qualified as ‘possessions’ for the purpose of A1P2.

Considering whether she was excluded from access to her ‘possession’ on a discriminatory basis, the Court said that the relevant test was ‘whether, but for the condition of entitlement the applicant would have had a right enforceable under domestic law, to receive compensation payment from the criminal injuries compensation scheme’.

The Court was satisfied that:

  • The 2009 Scheme established an entitlement ‘as of right’ to an award for claimants meeting the eligibility criteria of the scheme;
  • The applicant fulfilled the eligibility criteria;
  • Her only obstacle was the ‘same household rule’;
  • The same household rule had all the necessary features of a discriminatory ‘other status’
  • The applicant was discriminated on the basis of that status, engaging Article 14 in conjunction with A1P1.

The Court accepted that the impugned measure was rationally connected to a legitimate aim, but that examples of less intrusive measures to achieve the legitimate aim already existed in the 1988 Order in NI and ‘in every compensation scheme issued in GB since 1979’.

The Court said there was ‘no reasonable foundation’ for the decision to exclude her from the scheme, and emphasised that, although ‘financial sustainability and administrative workability may be necessary pre-conditions underpinning a viable scheme … they cannot be considered to be the ‘purpose’ of that scheme’.

Allowing the applicant’s appeal and dismissing the DoJ’s cross-appeal, the Court said it would hear parties on the alternative remedy.

  • by Seosamh Gráinséir for Irish Legal News

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