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Headnote |
Summary of decision:
The European Court of Human Rights found there to be no breach of A’s rights under articles 6, 8, 13 and 14 of the European Convention on Human Rights in circumstances where it was decided that, where A had consented as a matter of fact to gross indecency and buggery, there was no crime of violence notwithstanding that A was a child at the time.
Facts:
The Applicant ‘A’ was 13 years old when, in 1990, he suffered a number of sexual assaults upon him by an older man ‘C’. A had gone to a public lavatory in the hope of meeting someone to perform homosexual acts in exchange for money and had there met C. A number of further meetings took place between them. In 1993, C was convicted of buggery and indecency with A. In April 1997, A made an application for compensation to the Criminal Injuries Compensation Authority (‘the Authority’). His claim was rejected on the ground, inter alia, that the offences committed were not crimes of violence for the purposes of paragraph 8(a) of the Criminal Injuries Compensation Scheme 1996 (‘the Scheme’). Upon review, the Authority upheld that decision on the same grounds. A appealed to the Criminal Injuries Compensation Appeals Panel (‘the Panel’). At the hearing, it was accepted on A’s behalf that he had participated voluntarily, but it was submitted that any consent was vitiated by his age, history in care and earlier history of sexual abuse. The Panel dismissed the appeal finding that there had not been a crime of violence. On A’s application for judicial review of the Panel’s decision, Owen J held that it did not follow that because there could not be consent valid in law, that there was a crime of violence. It was for the final analysis of the Panel to consider on the evidence, having assessed the witnesses and the facts before it, whether there had been a crime of violence. There was no reason to say that the Panel had erred in law, or that the decision was unreasonable. It was not appropriate to quash its decision. The Court of Appeal dismissed A’s appeal finding (i) the Panel had been justified in thinking that the issue of the applicant's consent was relevant to the construction and application of the concept of crime of violence and was the only live issue before it, (ii) the offence of buggery in sections 12 and 13 of the Sexual Offences Act 1956 was established to prevent unnatural behaviour and not to protect children or any other person involved, (iii) an act of buggery need not entail an assault, as the Sexual Offences Act 1967 specifically recognised in section 7(2)(c) and (iv) since the consent of either party to an act of buggery was irrelevant to guilt, the age of the parties was irrelevant, save where the special provisions of section 1 of the Act applied to exempt from prosecution an act of buggery between consenting adults in private; (v) it was for the Panel to decide, as a jury question, taking into account all the circumstances of the case, whether the crime as actually committed had been a crime of violence and in the instant case the Panel had properly decided that it was not. Leave to appeal to the House of Lords was refused. A made an application to the European Court of Human Rights (‘ECHR’) and argued: (i) that there had been a breach of his right to a private life under article 8 of the Convention by the finding of the court that he had consented to the sexual offences committed against him and was not a victim of a crime of violence; (ii) that he did not have a fair trial under article 6; (iii) that he had been discriminated against contrary to article 14, in conjunction with articles 6 and 8, in that the Scheme failed to recognise that children should be treated differently from adults; (iv) that he was prevented from exercising his civil rights under article 13 to seek compensation.
Held, dismissing the application
(1) The ECHR observed that C had been subject to criminal proceedings and had received a substantial term of imprisonment. It could not be said that the UK criminal law condoned or permitted C’s acts. Article 8 did not include a right to receive compensation for criminal injuries, nor did the refusal of the court to equate sexual offences against children with crimes of violence in all circumstances, deprive A of protection of his physical and moral integrity.
(2) The grant of compensation for criminal injuries provided ex gratia awards and it was therefore not apparent that any proceedings before the Authority and the Panel concerned any of the applicant's civil rights in the sense guaranteed by article 6. The court observed that, assuming the procedures did fall within the scope of article 6, that article 6 did not in itself guarantee any particular content for civil rights and obligations. * ( See editor’s note below). Further, A had had access to the courts, with legal representation and the opportunity to argue points in his favour. There was no appearance of unfairness.
(3) The ECHR was not persuaded that the applicant was the victim of discrimination for the purposes of article 14. The same criterion applied to adults and children in relation to the application of the Scheme and any finding that an individual was or was not a victim of a crime of violence. The fact that the Scheme only applies to victims of crime of violence is a matter for the contracting state (UK) and may be regarded as having objective and reasonable justification.
(4) Article 13 was inapplicable, in that it depended on an arguable claim for violation of another Convention right.
Parts of the scheme and other legislation referred to in judgment
1996 Scheme, paragraphs 8, 13
European Convention on Human Rights, articles 6, 8, 13, 14, 35
Cases referred to in the judgment
X and Y v the Netherlands, 26 March 1985, Series A no. 91
James and Others v the United Kingdom, 21 February 1986, Series A no. 98 p46
Lithgow and Others v the United Kingdom, 8 July 1986, Series A no. 102 p.70
Holy Monasteries v Greece, 9 December 1994, Series A no. 301 p.37
Z and Others v the United Kingdom, no. 29392/95, ECHR 2001-V
Boyle and Rice v the United Kingdom, 27 April 1998, Series A no. 131
Representation
Ms Y Spencer, instructed by the Children’s Legal Centre, for A.
*Editor’s note: The European Court of Human Rights was wrong to say that the Scheme did not give rise to any civil rights so as to bring it within Article 6, when the 1996 (and 2001) Schemes do create such rights. The Panel and Authority subsequently issued a statement to correct this.
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