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Headnote |
Summary of decision:
Decisions of the Secretary of State for the Home Department not to bring sections 108 to 117 of the Criminal Justice Act 1988 into force (which would have provided a scheme for compensation for violent crime on a case by case basis calculated substantially on common law principles) and, instead, to introduce a non-statutory tariff scheme for criminal injury compensation (with likely lower awards in serious cases) were unlawful. The Home Secretary was not, however, under any legally enforceable duty to bring the sections into force at any particular time.
Facts:
Until 1 August 1964 victims who suffered personal injuries as a result of crimes of violence had no right of compensation out of public funds. On 24 June 1964 a scheme compensating such victims was announced in both Houses of Parliament. In its original form the scheme was non-statutory and introduced under the prerogative powers. It provided for a system of ex gratia payments to be assessed on the same basis as common law damages. A Royal Commission and a working party later recommended that the scheme be put on a statutory basis. On 29 July 1988 the Criminal Justice Act 1988 received Royal Assent. Sections 108 to 117 of and Schedules 6 and 7 to the Act contained a statutory criminal injuries compensation scheme that would continue to provide compensation for victims of violent crime on a case by case basis calculated substantially on common law principles. By section 171(1) of the Act the enacted provisions were expressed to come into force "on such day as the Secretary of State may . . . appoint." The sections were never brought into force. In December 1993 a White Paper gave details of a proposed non-statutory tariff scheme under which awards would be based on a tariff fixed according to injuries received without any additional payments being made for loss of earnings or other past or future losses. The tariff scheme came into force on 1 April 1994 and contained transitional provisions whereby applications for compensation received before 1 April 1994 would be dealt with under the provisions of the old 1990 scheme. It was common ground that in some cases, particularly in relation to very serious injuries involving prolonged loss of earnings, the amount payable to the victim under the tariff scheme would be substantially less than the amount (s)he would have received under the statutory scheme. The applicants, representing persons liable to suffer injury as victims of violent crime, brought judicial review proceedings and sought declarations that (1) the Secretary of State was in breach of his duty under section 117 of the Act of 1988 in failing to bring the statutory scheme into effect and (2) the Secretary of State acted unlawfully in introducing the tariff scheme. The Divisional Court dismissed the application. The Court of Appeal allowed in part an appeal by the applicants, declining unanimously to grant the first declaration sought but by a majority granting the second declaration. On appeal by the Secretary of State and cross-appeal by the applicants:-
Held,
(1) Dismissing the cross-appeal, section 171(1) did not impose a legally enforceable duty on the Secretary of State to bring sections 108 to 117 into force at any particular time.
(2) Dismissing the appeal (Lord Keith of Kinkel and Lord Mustill dissenting): Because of the clear purpose for which the power in section 171(1) was conferred on the Secretary of State, two things followed. First, the Secretary of State came under a clear duty to keep under consideration from time to time the question whether or not to bring the sections (and therefore the statutory scheme) into force and he could not lawfully surrender or release the power contained in section 171(1) so as to purport to exclude its future exercise either by himself or by his successors. It followed that the decision of the Secretary of State to give effect to the statement in paragraph 38 of the White Paper that "the provisions in the Act of 1988 will not now be implemented" was unlawful. The Secretary of State had made the attempt to bind himself not to exercise the power conferred by section 171(1) and such attempt was an unlawful act.
(3) Secondly, although the Secretary of State was entitled to decide not to bring the sections into force if events subsequently occurred which rendered it undesirable to do so, he could not himself procure such events to take place and then rely on their occurrence as grounds for not bringing the stautory scheme into force. The Secretary of State was in effect claiming that the purpose of the statutory power had been frustrated by his own act in choosing to introduce a scheme inconsistent with the statutory scheme approved by Parliament
(4) The Secretary of State could only validy exercise the prerogative power to abandon the old scheme and introduce the tariff scheme if, at the same time, he could validly resolve never to bring the inconsistent statutory scheme into effect. As he could not lawfully do so for the reasons set out above, his decision to introduce the tariff scheme at a time when the statutory provisions and the power under s.171 (1) were still on the statute book was unlawful and an abuse of the prerogative power.
(4) The 1994 tariff scheme had therefore been unlawfully introduced.
Parts of the scheme and other legislation referred to in their Lordships’ opinions:
Criminal Justice Act 1988, sections 108-117, 171 and Schedules 6 and 7
Appropriation Act 1984
Domestic Violence and Matrimonial Proceedings Act 1976, section 5(2)
Cases cited in their Lordships' opinions:
Attorney-General v. De Keyser's Royal Hotel Ltd [1920] A.C. 508, H.L.(E.)
Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, H.L.(E.)
Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997, H.L.(E.)
Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864,
Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] A.C. 617, H.L. (E)
Representation:
Lord Rodger of Earlsferry, QC, Lord Advocate, Mr Guy Sankey, QC and Mr Stephen Richards, instructed by Treasury Solicitor, for the secretary of state.
Mr Patrick Elias, QC and Miss Dinah Rose, instruced by Robin Thompson & Partners, for the applicants.
Suggested Editor’s note: The unlawful 1994 tariff scheme was withdrawn and a new statutory tariff scheme, with provision for certain financial losses, was subsequently introduced by the Criminal Injuries Compensation Act 1995.
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