Law Report: No compensation for child sex abuse: Regina v Home Secretary and Criminal Injuries Compensation Board, ex parte P and another - Court of Appeal (Lord Justice Neill, Lord Justice Evans and Lord Justice Peter Gibson) 4 May 1994

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The Independent Culture
The decision by the Home Secretary, when revising the scope of the Criminal Injuries Compensation Scheme, to continue to exclude claims by the victims of offences by other persons living in the same household prior to the date of the scheme's revision, was susceptible to judicial review but was not, upon such review, found to be irrational.

The Court of Appeal affirmed the decision of the Queen's Bench Divisional Court on 28 April 1993, rejecting applications by two women, referred to as P and G, for judicial review of decisions by the Criminal Injuries Compensation Board to reject their claims for compensation for sex abuse offences committed by their stepfathers during their childhood, prior to 1 October 1979.

The scheme, introduced in 1964 to compensate victims of violent crime, initially excluded offences committed against persons in the same household as the offender. But following revisions in 1979, and again in 1990, compensation thereafter became payable for such offences if committed after 1 October 1979.

The applicants argued that it was arbitrary, irrational, unjust and unfair to maintain in force the inflexible pre-1979 'same roof' rule, which prevented persons such as the applicants obtaining proper compensation.

The court was unanimous in rejecting the applicants' claims of irrationality; but Lord Justice Neill dissented on the question whether the Home Secretary's decision was subject to review in the first place.

Lord Lester of Herne Hill QC and Elizabeth Woodcraft (Maureen Foster, Newcastle City Law Centre, and Evans Butler Wade) for the applicants; Guy Sankey QC and Michael Kent (Treasury Solicitor) for the respondents.

LORD JUSTICE NEILL said the decisions in issue involved a balance of competing claims on the public purse and the allocation of economic resources which the court was ill-equipped to deal with.

The Home Secretary had to make a judgment as to how to allocate the resources at his disposal. His decision to continue the pre-1979 exclusion could not be regarded as a 'justiciable' issue of the sort to which the judicial process was adapted to provide the right answer: see CCSU v Minister for Civil Service (1985) AC 374 at 408, per Lord Diplock.

But in any event, his Lordship saw no material on which the court could decide that no Secretary of State acting rationally could have maintained in force the pre-1979 rule in respect of claims for offences committed before 1979.

LORD JUSTICE EVANS agreed that the appeals should be dismissed because the applicants had failed to prove the charge of irrationality, but differed on the justiciability issue.

The fact that the scheme might be described as the distribution of 'bounty' on behalf of the Crown and that moneys were granted to the Home Office by Parliament for this purpose, could not be regarded either as justifying an unfair or irrational scheme, if such was the case, or as precluding the courts from exercising their constitutional powers of judicial review in an appropriate case.

LORD JUSTICE PETER GIBSON agreed that the Home Secretary's decision was susceptible to judicial review but that the applicants had failed to prove irrationality.