A and B v Criminal Injuries Compensation Authority & Anor [2021] UKSC 27

Twin brothers, Lithuanian nationals and victims of human trafficking, were denied compensation under the Criminal Injuries Compensation Scheme due to unspent criminal convictions from Lithuania predating their trafficking. The Supreme Court held that excluding them did not constitute unjustified discrimination under Article 14 read with Article 4 ECHR.

Facts

The appellants, A and B, are twin brothers and Lithuanian nationals who grew up in State care. A was convicted of burglary in Lithuania in 2010 and sentenced to three years’ custody; B was convicted of theft in 2011 and sentenced to eleven months’ custody. In 2013, they were trafficked to the United Kingdom and subjected to labour exploitation and abuse. Their traffickers were convicted in 2016. Both appellants applied for compensation under the Criminal Injuries Compensation Scheme (CICS) 2012 but were refused awards due to their unspent convictions, which automatically disqualified them under paragraph 26 and Annex D, paragraph 3 of the CICS (the exclusionary rule).

Issues

Primary Issue

Whether excluding the appellants from compensation under the CICS on the ground of their previous criminal convictions constituted unjustified discrimination against them as victims of trafficking, in breach of Article 14 taken with Article 4 of the European Convention on Human Rights (ECHR).

Subsidiary Issues

Whether the subject matter fell within the ambit of Article 4 ECHR; whether being a victim of trafficking or having a relevant unspent conviction constituted ‘other status’ for Article 14 purposes; and whether any difference in treatment was justified.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Lloyd-Jones, delivering the leading judgment with which all other justices agreed, held that:

Ambit

While the Court did not conclusively determine whether Article 4 ECHR imposes a duty on states to compensate victims of trafficking, it found that the CICS, by extending its benefits to victims of trafficking, applies a measure with more than a tenuous connection to the core value of protecting victims of trafficking under Article 4. This brought the matter within the ambit of Article 4 for Article 14 purposes.

Status

Both being a victim of trafficking and having an unspent conviction resulting in a custodial or community sentence constitute ‘other status’ for Article 14 purposes, following the broad interpretation endorsed in cases such as Clift v United Kingdom and R (Stott) v Secretary of State for Justice.

Difference of Treatment and Justification

The Court rejected the argument that victims of trafficking should be treated more favourably than other crime victims regarding the exclusionary rule. Crucially, the appellants’ convictions predated their trafficking and were entirely unconnected to it. They were not ‘nexus offenders’ (those compelled to commit offences as a consequence of being trafficked). The non-punishment protections for nexus offenders had no application to their cases.

The fact that some victims of trafficking who have committed offences will be nexus offenders cannot provide a basis for requiring differential treatment for all victims of trafficking who have committed offences, including those who like the appellants are not nexus offenders.

Regarding justification for differentiating between those with relevant unspent convictions and those without, the Court applied the ‘manifestly without reasonable foundation’ test appropriate for social welfare policy. The legitimate aim was ensuring limited public funds are directed to those considered blameless. The graduated approach in Annex D, reflecting seriousness of offending and passage of time, was proportionate.

The measure has the legitimate objective of limiting eligibility to compensation to those deserving of it. Furthermore, the measure satisfies the requirement of proportionality.

Implications

This judgment clarifies several aspects of Article 14 ECHR discrimination law. It confirms a broad interpretation of ‘other status’ encompassing acquired characteristics such as being a victim of trafficking or having an unspent conviction. It affirms that voluntary state measures benefiting victims of trafficking fall within the ambit of Article 4 for discrimination purposes, even absent a positive obligation to provide such measures. Significantly, it establishes that victims of trafficking are not entitled to preferential treatment over other crime victims in compensation schemes simply by virtue of their trafficking status, particularly where their criminal convictions are unconnected to their trafficking. The decision also underscores judicial deference to Parliament in social welfare policy, especially where bright-line rules have been adopted following consultation.

Verdict: Appeal dismissed. The exclusionary rule in the Criminal Injuries Compensation Scheme 2012 did not constitute unjustified discrimination in breach of Article 14 read with Article 4 ECHR.

Source: A and B v Criminal Injuries Compensation Authority & Anor [2021] UKSC 27