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Headnote |
Summary of decision
Facts
The applicant (‘S’) was sexually abused by her step-father between 1967 and 1973 while he was living with her, her mother and brother. He was convicted of rape and other offences in March 1997 and sentenced to 7 years’ imprisonment.
S’s application for compensation was refused by the Criminal Injuries Compensation Authority (‘the Authority’) on the basis of paragraph 7(b) of the Criminal Injuries Compensation Scheme 1996 (‘the 1996 Scheme’). Paragraph 7(b) excluded the payment of compensation where the criminal injury was received before 1st October 1979 and the victim and assailant were living together at the time as members of the same family.
S asked for a review and her application was refused again by the Authority on 16 September 1997. She then lodged an appeal to the Criminal Injuries Compensation Appeals Panel (‘the Panel’). This was refused on 12th January 1998.
S appealed to the European Court of Human Rights, but her application was dismissed on 6 July 1999 on the grounds that the State’s positive obligation under Articles 3 and 8 of the European Convention on Human Rights (‘the Convention’) did not require the State to provide compensation to the victims of ill-treatment by individuals.
Following the Panel decision, the Human Rights Act 1998 (“the 1998 Act”) was passed, and was then brought into force on 2 October 2000. With effect from that date it became unlawful for a public authority, which included the Authority and the Panel, to act in a way which was incompatible with a Convention right, including the right to a fair hearing (Article 6) and the right not to be discriminated against in the exercise of other rights (Article 14).
Section 22(4) of the 1998 Act provided that the Act was not intended to have any retrospective effect. It was not therefore open to S to bring an application for judicial review under section 7(1) of the 1988 Act as such an application would relate to conduct prior to the Act coming into force, namely the decision of the Panel in 1998. It was not possible to challenge the decision to bring the 1996 Scheme into operation for the same reason. S therefore sought a common law remedy, namely a declaration of incompatibility under section 8 of the 1988 Act, on the grounds that such a remedy could be free-standing.
Held, refusing the application,
(1) S had correctly accepted that it was not open to her to bring an application for judicial review under section 7(1) of the 1988 Act as the Act was not intended to have any retrospective effect.
(2) None of the authorities relied upon by S’s counsel supported his proposition that a declaration of incompatibility was a free-standing remedy, which was available independently of proceedings under section 7(1) of the 1988 Act.
Parts of scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1996, paragraph 7(b)
European Convention on Human Rights, Articles 6, 14
Human Rights Act 1988 ss.4, 6, 7, 8, 9, 22(4)
Mental Health Act 1983
Cases referred to in judgment
Aston Cantlow PCC v Walibank [2001] EWCA Civ 713, [2001] 3 WLR 1323
International Transport Roth GmbH v Home Secretary [2002] EWCA Civ 158, [2002] 3 WLR 34
R v Rezvi [2002] UKHL 1, [2002] 2 WLR 235,.
R (on the application of H) v London North and East Region Mental Health Review Tribunal [2001] EWCA Civ 415, [2001] 3 WLR 512
R (on the application of Hooper) v. Secretary of State for Work and Pensions [2002] EWHC 191 (Admin), [2002] UK HRR 785
Representation
Mr. Sutherland (Drummond Miller, W.S.) for the Petitioner
Mr. Lindsay (R. Henderson) for the Respondent
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