RP and TG v Home Office and CICB 1994

FACTS:- 

P was born in 1962 and G in 1964. Both were women who were victims of sexual abuse when they were children. P claimed abuse by her step father between 1967 and 1976, and G claimed abuse  by her step father between 1971 and 1982. P’s claim was rejected because the abuse had occurred prior to the 1^st October 1979. G received an award for the abuse after that date, but not before. The applicable paragraph was paragraph 7 of the Criminal Injuries Compensation Scheme 1969. P and G applied for judicial review of the decision by the CICB and the matter came before the Court of Appeal.

HELD:- 

Lord Justice Neill went over the history of the Scheme. This had been introduced in 1964 and had then been amended in 1969. There was a further revision of the scheme in 1990, and this scheme applied to all applications for compensation received by the CICB on or after the 1^st February 1990. So this Scheme applied to P and G. Paragraph 7 of the 1969 Scheme stated:- 

“Where the victim 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.”  

A Working Party had made its report in 1978 and considered whether Paragraph 7 should be retained. The original reasoning behind the paragraph was the difficult of establishing the facts and of assessing the precise part that each party played in the circumstances leading up to the injury. There was also the fear that the assailant might benefit from any money that was paid to the victim. However it was decided to remove paragraph 7 and this was done by the 1979 Scheme which came into operation on the 1^st October 1979. Paragraph 25 provided for implementation and stated that the provisions of the 1979 Scheme would apply to application in respect of injuries suffered on or after the 1^st October 1979. Injuries suffered before that date would continue to be dealt with under the old 1969 Scheme.

There was then a further revision in 1990. This scheme would apply to all applications received by the CICB on or after the 1^st February 1990 with certain exceptions. Paragraph 7 of the 1969 Scheme was specifically expressed to apply to all injuries incurred before the 1^st October 1979.

Neill LJ commented that none of the statutory schemes was set up by statute. He said that the following questions needed to be answered by the court. 

1)    Did the court have jurisdiction to examine the legality of the scheme?

2)    Could the court decide the issue as to whether the government acted lawfully in excluding claims in respect of incidents which took place before October 1979?

3)    Did the Applicants have any right or legitimate expectation to receive compensation in respect of any offence committed before October 1979?

4)    Was the decision of the government to exclude claims in respect of offences committed before October 1979 irrational? 

Neill LJ said that the court had some jurisdiction to consider the legality of the CICB Scheme. The decisions as to the scope and terms of the various schemes were taken under prerogative or analogous powers. There was therefore no clear framework (unlike with statute) by which the legality of the provisions of the Scheme could be judged. The complaint was that the decision in relation to the pre-1979 rule was irrational. However this was a decision as to how to allocate resources and consequently it was non justiciable. 

In relation to the legitimate expectation point, Neill LJ said that the Scheme was ex gratia, and consequently those who benefited from the scheme had no rights or legitimate expectations. However Neill LJ said that in view of his decision on justiciability, he did not need to decide that point. In relation to irrationality, Neill LJ said that in his view the government had acted rationally in maintaining the pre-1979 rule. 

Lord Justice Evans agreed that the court had jurisdiction to examine the legality of the scheme. He went on to say that there was no evidence that the decision in relation to the pre 1979 rule was taken due to financial constraints, and consequently this decision did seem to be amenable to review by the courts. However he did not think that the complaint of irrationality was made out.

Lord Justice Gibson agreed that the court had jurisdiction and that the decisions of the government in this area were justiciable. However he too could not see that the decision was irrational. The decision to make the removal of the pre 1979 rule prospective rather than retrospective could be understood in the context of allocation of resources.