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On appeal from: [2018] EWCA Civ 1534

The Supreme Court has unanimously dismissed this appeal concerning whether the exclusion of victims of human trafficking from compensation under the Criminal Injuries Compensation Scheme is unjustifiably discriminatory, in breach of Article 14 taken with Article 4 of the European Convention on Human Rights (“ECHR”).

The appellants A and B are brothers and Lithuanian nationals. In 2013 A and B were trafficked from Lithuania to the UK and subjected to labour exploitation and abuse.

Their status as victims of modern slavery and trafficking was confirmed in November 2013. After their traffickers were convicted, A and B applied for compensation under the 2012 iteration of the Criminal Injuries Compensation Scheme (“CICS”).

Their claims were rejected under the Scheme’s rules as, at the time of their application, they both had an unspent conviction which had resulted in a custodial sentence. A and B brought judicial review claims challenging the lawfulness of the Scheme against the Criminal Injuries Compensation Authority (“CICA”) and the Secretary of State for Justice. The appellants argued, amongst other things, that the exclusionary rule was discriminatory and therefore not compatible with the United Kingdom’s obligations under the ECHR.

Their claims were dismissed by the High Court and the Court of Appeal. They now appeal to the Supreme Court.

HELD: Appeal unanimously dismissed.

Article 14 of the ECHR prohibits discrimination only in the context of the enjoyment of the rights and freedoms set out in the ECHR. As a result, the appellants need to establish that the exclusionary rule is sufficiently closely connected with one of the substantive ECHR rights in order to bring article 14 into play. The Court concludes that these appellants can do so. By applying the CICS to victims of trafficking, the United Kingdom has chosen to confer a degree of protection to promote their interests. In doing so, it is applying a measure which has a sufficient connection with the core value of the protection of victims of trafficking under article 4 of the ECHR, which prohibits slavery and forced labour. The rights voluntarily conferred under the CICS must therefore be made available without discrimination.

Article 14 of the ECHR prohibits differential treatment on specified grounds, including sex and race, and on the basis of “other status[es]”. In the present case, the Court considers that the appellants enjoy two relevant “other status[es]”, namely being victims of trafficking and having an unspent conviction which resulted in a custodial or community sentence. These are identifiable, personal characteristics which have significance independent of the CICS.

The question, then, is whether the exclusionary rule gives rise to discrimination. There are two elements to this part of the case. First, discrimination may arise where the state fails to treat differently people whose situations are significantly different. The Court concludes that the CICS is not discriminatory in this sense. There is no feature of the offence of people trafficking which would require preferential treatment to be accorded in the present context to victims of trafficking over victims of other serious crime. Secondly, discrimination may arise where people who enjoy a relevant status are treated differently from people not sharing that status who are in a similar situation. The Court concludes that the CICS is discriminatory in this sense. Clearly, there is a difference in treatment between victims of trafficking who have relevant unspent convictions and who are therefore denied compensation, and victims of trafficking who do not have such convictions and are therefore not denied compensation. Individuals in both groups might be victims of crimes of violence and so, but for the exclusionary rule, would both be potentially eligible for compensation under the CICS.

Differential treatment will not, however, breach article 14 of the ECHR if it can be justified. The test to be applied when considering the question of justification in the present context is whether the decision to adopt the measure under challenge was “manifestly without reasonable foundation”. This follows from a number of features of this case, including that the CICS operates in the field of social welfare policy, where courts should normally be slow to substitute their view for that of the decision-maker, and that the CICS was approved by Parliament. The status relied upon by the appellants is also not within the range of suspect reasons, such as sex and race, where discrimination is particularly difficult to justify.

Applying that test to the facts of this case, the Court finds that the CICS is not manifestly without reasonable foundation. It pursues the legitimate objective of limiting eligibility to compensation to those deserving of it. It is also proportionate. This is an area in which a considerable degree of latitude is accorded to the legislator and in which it is appropriate to adopt bright line rules, in order to promote clarity and consistency. The CICS takes a graduated approach to withholding or reducing compensation, reflecting in various ways both the seriousness and the age of a claimant’s previous conviction. In those circumstances, it is clear that the measure is no more intrusive than it needs to be and that it strikes a fair balance between the competing interests at stake.

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11 Nov 2020 Morning session Afternoon session