S v Advocate General 2004

FACTS:-

The Petitioner had been sexually abused by her father when she was 4 years of age. This went on for three years. Many years later it was reported and her father was convicted. The Applicant made an application to the Criminal Injuries Compensation Authority, but it was turned down on the grounds that the event affecting had occurred before October 1979, and the abuse had come from a family member living under the same roof. The Petitioner sought a declarator that the relevant paragraph of the Criminal Injuries Compensation Scheme 1996 was incompatible with human rights. She based her complaint on Article 6 and Article 1 of Protocol No. 1 both taken with Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Article 6 provided:- 

“……(1) In the determination of his civil rights and obligations…..everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….”

Article 1 of Protocol No. 1 provided:-

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprive of his possessions except in the public interest….The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

 Article 14 provided:-

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as [sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth] or other status…”

 HELD:-

Lord McEwan considered the history of the various CICB Schemes. The exclusion in respect of offences committed against persons in the same household as the offender, had been very substantially modified with the passage of time.

Paragraph 7 of the 1969 Scheme provided:-

“Where the victims who suffered injuries and the offender who inflicted them were living together at the time as members of the same family, no compensation will be payable. For the purposes of this paragraph where a man and a woman were living together as man and wife they will be treated as if they were married to one another.”

In 1979 a new Scheme was implemented, which took effect from the 1^st October 1979. This removed the complete exclusion of claims in respect of family violence where the injuries were incurred on or after the 1^st October 1979. However the amendment was not retrospective. This case was governed by Paragraph 8 of the 1990 Scheme, which applied to all applications for compensation received by the Board on or after 1^st February 1990. Paragraph 8 of that Scheme amended the rule in relation to abusers living with the victim as a member of the family. However once again, Paragraph 28 of the 1990 Scheme specifically excluded same family member injuries before the 1^st October 1979 and said that Paragraph 7 of the 1969 Scheme would continue to apply.

Lord McEwan said that it was clear that the decision to remove the same roof rule, but not to make it retrospective, had been made after careful analysis. He then considered the arguments and caselaw from both sides. The Human Rights Act 1998 (which came into force on the 2^nd October 2000) was not retrospective. Consequently the 1996 CICA Scheme was not open to attack, as it was valid when it was introduced.

In relation to the Articles on which the complaint was based, Article 6 was a procedural article designed to secure fairness. It could not of itself create any particular right. Article 14 by contrast, had to be looked at as something which had no independent existence and it could only operate where it could be linked to another rights conferring article. Because of the continuation of the “same roof” rule, the Petitioner could have no civil right under Article 6. She had access to a tribunal, and there was no procedural unfairness. Thus Article 6 was not engaged and Article 14 could be linked to it.

 Article 1 of Protocol No. 1 only protected property rights and the Petitioner had no such rights. Nor did she have any legitimate expectation.

 Provided the relevant article was engaged, it was not necessary to demonstrate an actual breach in order to link in to Article 14. It could not be disputed that this Petitioner has had different treatment meted out to her than one who had been abused after October 1979. Whether the difference in treatment amounted to discrimination brought in a number of wider convention issues.  Lord McEwan had to consider questions of executive policy, whether there was a legitimate aim in view and also whether the refusal to alter the scheme for pre 1979 cases was a proportionate response. The reasons related to problems of evidence, witnesses and costs. That was a proper reason and jurisprudence showed that such was a legitimate and proportionate justification.

 Therefore the petition could not succeed.