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Headnote |
Summary of decision
A legal challenge to the maintenance of the ‘same roof rule’ by which claims for injuries sustained before 1st October 1979 where the offender and victim lived together failed. Whilst the court had jurisdiction to judicially review the decision of the Secretary of State to amend the Criminal Injuries Scheme 1969, in 1979 to permit such claims after 1st October 1979, the decision could not be said to be irrational.
Facts
The applicants P and G were both victims of sexual abuse by their step fathers while they were children. P claimed that the abuse committed against her took place between 1967 and 1976, G claimed that the abuse against her took place between 1971 and 1982. P applied to the Criminal Injuries’ Compensation Board (‘the Board’) on 2nd July 1990. Her claim was rejected as the incidents complained of took place before 1st October 1979, pursuant to paragraph 28 of the Criminal Injuries Compensation Scheme 1990 (The 1990 Scheme) and paragraph 7 of the Criminal injuries Compensation Scheme 1969 (The 1969 Scheme). G applied to the Board in April 1990. She was awarded £5,000 compensation in respect of the abuse that occurred after 1st October 1979 but rejected her claim for compensation in respect of any incidents occurring before that date, pursuant to same provisions.
Both P and G applied for judicial review of the decisions of the Board. It was argued on behalf of P and G that once the ‘same roof’ rule had been dispensed with by amendment to the 1969 Scheme, (by the 1979 Scheme) in respect of future claims, there was no justification for retaining it in relation to the previous period of operation under the Scheme. The Divisional Court rejected the arguments put forward on behalf of P and G. They upheld the determinations of the Board and dismissed the applications. P and G appealed to the Court of Appeal.
Their Lordships considered four questions:
(1) Does the Court have jurisdiction to examine the legality of the Scheme?
(2) Can the Court decide the issue raised in the proceedings, namely whether the Secretary of State acted lawfully in excluding claims in respect of incidents which took place before October 1979? Is this a justiciable issue?
(3) Have the appellants any right or legitimate expectation to receive compensation in respect of any offence committed before October 1979?
(4) Was the decision of the Secretary of State to exclude claims in respect of offences committed before October 1979 irrational?
Held, dismissing the appeals
Jurisdiction
(1) If a question arises as to the legality of any action taken by the executive the court as a general rule has jurisdiction to entertain the question unless the court’s powers in this regard have been removed or restricted by parliament. (Per Neill LJ and Evans LJ and Gibson LJ)
Justiciability
(2) The issue raised was justiciable. (Neill LJ dissenting on this issue) Per Evans LJ “I do not regard the facts that the Scheme may be described as the distribution of ‘bounty’ on behalf of the Crown and that moneys are granted to the Home Office by parliament for this purpose….as precluding the courts from exercising their constitutional powers of judicial review in an appropriate case….It is the nature of the Scheme which is complained of and, far from being non justiciable, the decisions to introduce and continue A Scheme to be administered by an independent body of persons on a judicial or quasi-judicial basis seem to me to be almost the epitome of an executive or administrative decision which is amenable to review by the courts.
Legitimate expectation
(3) There was no need to express a final view on legitimate expectation, although per Neill LJ this would be difficult to establish in light of the ex gratia nature of the Scheme. It being suggested that the Applicants’ only right was to have their claims considered fairly in accordance with the Scheme presently in force.
Irrationality
(4) The case failed in respect of the allegation of irrationality. There would be no material on which the court could decide that no Secretary of State acting rationally could have maintained in force the pre 1979 rule. Per Evans LJ, it was a feature of the original 1964 Scheme as it is of the revised Schemes that claims were limited to injuries caused after the date of that Scheme. In these circumstances it would be impossible to say that this was an irrational feature of any of the Schemes. Per Gibson LJ, the general rule was that new measures taken by a government will operate prospectively not retrospectively. It was for the Home Secretary to decide on the allocation of limited resources in light of competing policy considerations…the court is ill-equipped to deal with questions of this sort.
Parts of scheme and other legislation referred to in judgment
1969 Criminal Injuries Compensation Scheme, paragraph 7;
1990 Criminal Injuries Compensation Scheme, paragraphs 4, 8, 28
Cases referred to in judgment
R v. The Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864;
R v. Entry Clearance Officer, ex party Amin [1983] 2 AC 818;
Council of Civil service Unions v. Minister for Civil Service [1985] AC 374;
M v. Home Office (1993) 3 WLR 433;
R v. Employment Secretary, ex parte EOC [1994] 2 WLR 409;
Notts. CC v. Secretary of State for Environment [1986] AC 240;
Buttes Gas v. Hammer [1982] AC 888;
R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] 2 WLR 224;
R v. Secretary of State for the Home Department, ex parte Bentley [1994] 2 WLR 101;
Hanratty v. Lord Butler (unreported 12 May 1971);
Ex parte Schaffer (1987) I.R.L.R 53;
I.R.C v. National Federation of Self- Employed and Small Businesses Ltd [1982] AC 617
Representation
Representation not recorded
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