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Headnote |
Summary of decision
The presumption that legislation does not affect vested rights or pending proceedings applies to the Human Rights Act 1998 as there is nothing in the Act to rebut that presumption. The 1998 Act does not retrospectively give a claimant a cause of action which that claimant would not otherwise have had. In the circumstances of the present case the petitioner was unable to rely on the Act as her application for criminal injuries compensation was made prior to it coming into force.
Facts
The petitioner(‘DJS’), born 11 February 1964, was sexually abused by her father between Spring 1968 and August 1971 (ie between the ages of four and seven and a half years). As a consequence of the abuse she sustained physical damage to her womb, which meant that she was unable to have children, and damage to her mental health. In about June 2001 DJS’s father pleaded guilty to, and was convicted of, indecently assaulting her.
On or about 12 October 1999 DJS made an application for compensation to the Criminal Injuries Compensation Authority (‘the Authority’). Her application was refused by means of a letter dated 8 November 1999 and she requested a review of the decision. The Authority advised DJS that as a consequence of the terms of paragraph 7(b) of the Criminal Injuries Compensation Scheme 1996 (‘the 1996 scheme’) no award of compensation could be made to her as the injury was sustained before 1 October 1979 and at the time she was living together with the assailant as members of the same family.
DJS appealed to the Criminal Injuries Compensation Appeals Panel (‘the Panel’) who dismissed her appeal by means of a letter dated 15 April 2002. Her petition for judicial review came before the Lord Ordinary who found for the Respondents and refused her petition. She appealed to the Inner House. When the case came before the Inner House, DJS sought the following:-
(1) a declarator that the terms of paragraph 7(b) of the 1996 Scheme were incompatible with her rights under Articles 3 and 8, taken with Article 14 and Article 1 of Protocol 1 taken with Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, (‘the Convention’);
(2) reduction of paragraph 7(b) of the 1996 Scheme;
(3) reduction of the decision of the Panel of 15 April 2002;
Four principal propositions were advanced on behalf of DJS. These were as follows:-
(1) that the decision of the Panel of 15 April 2002 was contrary to section 6 of the Human Rights Act 1998 (‘the 1998 Act’) and that DJS had suffered a violation of her rights under the Convention by reason of the decision of the Panel;
(2) that the failure of the 1996 Scheme to include persons in DJS’s position fell within the ambit of Article 3, Article 8 and Article 1 of Protocol 1 of the Convention;
(3) that in excluding persons in DJS’s position from the 1996 Scheme DJS had been treated differently from comparators in analogous situations;
(4) that the difference in treatment did not have an objective and reasonable justification.
Held, refusing the petition,
(1) The 1998 Act did not apply to DJS’s application for criminal injuries compensation because it had been made before the commencement of the Act. There was a presumption that legislation did not affect pending proceedings and there was nothing in the 1998 Act to rebut that presumption. In the factual circumstances of the present case, namely the making of a claim for criminal injuries compensation, prior to the coming into force of the 1998 Act on 2 October 2000, and its processing thereafter, the Court was quite satisfied that the presumption operated. The Court was also satisfied that the coming into force of the 1998 Act could not give DJS a cause of action in relation to pre-commencement circumstances which she would not otherwise have had. Accordingly it was held that the 1998 Act had no application in the present case. As DJS placed exclusive reliance upon rights in domestic law based upon the Convention, but created by the 1998 Act, the Court concluded that her petition must be refused.
(2) The Court also considered, obiter, whether the failure of the 1996 Scheme to include persons in DJS’s position fell within the ambit of Article 3 or Article 8 of the Convention. The Court concluded that they were unable to hold that the subject matter of DJS’s case fell within the ambit of Article 3 and that it had, at best, a no more than tenuous link with the core values of Article 8.
(3) The Court also gave consideration, obiter, as to whether DJS had a possession that could be protected by Article 1 of Protocol 1 of the Convention They had no hesitation in concluding that she did not. While DJS asserted a claim to criminal injuries compensation, because of the provisions of paragraph 7(b) of the 1996 Scheme, that claim must be seen as having had no basis whatsoever in national law. A right to bring a claim could be a possession. However, a right to bring a claim which was bound to fail was not a possession and therefore could not be protected under Article 1 of Protocol 1.
(4) The Court considered whether DJS’s treatment under paragraph 7(b) of the 1996 Scheme was within one of the categories of discrimination prohibited by Article 14 of the Convention. They concluded that there was no question of discrimination or difference of treatment on the grounds of any “status” in terms of Article 14; the difference in treatment was the consequence of a time requirement, as regards the date when the relevant offence had occurred. The only relevant comparator was another ‘same roof’ victim of an offence occurring after 1 October 1979. There was therefore no discrimination of the kind falling within the scope of Article 14 as no status or personal characteristic was involved.
Parts of scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1996, (‘the 1996 Scheme’) paragraphs 6, 7(b), 9 and 16
Human Rights Act 1998, (‘the 1998 Act’) section 6
European Convention for the Protection of Human Rights and Fundamental Freedoms, (‘the Convention’) Articles 3, 8 and 14 and Article 1 of Protocol 1.
Cases referred to in judgment
In Re McKerr [2004] 1 W.L.R. 807
Wilson v. First County Trust Limited (No.2) [2004] 1 A.C. 816
A v. Hoare [2006] W.L.R. 2320
M v. The Secretary of State for Work and Pensions [2006] 2 W.L.R. 637
Stuart v. The United Kingdom (Application No. 41903/98)
Van der Mussele v. Belgium (1983) 6 E.H.R.R. 163
Roche v. The United Kingdom (2006) 42 EH.R.R. 30
Stec v. The United Kingdom (2005) 41 E.H.R.R. S.E. 18 295
Matthews v. The Ministry of Defence [2003] 1 A.C. 1163
R (Carson) v. The Secretary of State for Work and Pensions [2006] 1 A.C. 173
Representation
Bovey QC and Sutherland instructed by Drummond Miller for DJS.
Moynihan QC and Lindsay instructed by C Mullin, Solicitor to the Advocate General for Scotland for the Respondents.
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