Law Report: No claim for sex abuse award: Regina v Criminal Injuries Compensation Board, Ex parte P - Queen's Bench Divisional Court (Lord Justice Leggatt and Mr Justice McCullough), 28 April 1993

The criminal injuries compensation scheme's exclusion of compensation claims to victims of family violence for injuries occurring before 1 October 1979 was not unfair or irrational. A victim did not have any entitlement to compensation under the scheme, which was a manifestation of the bounty of the Crown, and could only recover an award according to the rules in force.

The Divisional Court dismissed an application for judicial review of decisions of the Criminal Injuries Compensation Board to refuse to entertain the applicant's application for compensation.

The applicant, who was born in 1962, claimed that she had been sexually abused by her stepfather between 1967 and 1976 but had suppressed her recollection of the offences until 1988. In 1989 her stepfather pleaded guilty to charges relating to three girls. Her application to the board in 1990 for compensation was refused because of the delay in making the claim and because before 1 October 1979 no compensation was payable under the criminal injuries compensation scheme where the victim and offender lived together as a family.

The applicant submitted that since the scheme had been amended with effect from 1 October 1979 so that the 'same roof' rule had not been retained, the absolute and inflexible exclusionary rule to disqualify victims of family violence whose injuries occurred before that date was arbitrary, irrational and unfair.

Anthony Lester QC and Elizabeth Woodcraft (Newcastle Community Law Centre) for P; Michael Kent (Treasury Solicitor) for the board.

LORD JUSTICE LEGGATT said that the board was created by the Secretary of State for the Home Department under the Royal Prerogative and the scheme came into force in 1964. The argument for the applicant consisted in looking at the scheme and contending that improvements or refinements introduced from time to time should have been there from the outset.

The reality was that the circumstances had been amended in which public money might be paid out to applicants, none of whom had any entitlement to it. It was a manifestation of the bounty of the Crown. In this context amelioration of the scheme did not betoken any pre-existing deficiency in it of which applicants were entitled to complain.

The exclusion of claimants by force of the 'same roof' rule was no more irrational than the exclusion before the scheme came into force of all victims of crimes of violence, or the continuing exclusion since then of those injured other than through crimes of violence.

The reasons for the exclusionary rule at the outset, namely the difficulties of establishing the facts and the difficulty of ensuring that compensation did not benefit the offender, were sound, could not have been characterised as arbitrary or capricious, still less perverse, and were still cogent. The extension of the scheme so as to permit compensation to be paid to the more seriously injured victims of violence within the family did not render objectionable the maintenance of the rule up to 1 October 1979.

The scheme was not irrational at its inception and it had not been rendered so, in whole or in part, by subsequent amendments. The making of a claim was not a right but a privilege. It followed that the only legitimate expectation that a claimant could have was of recovering an award in accordance with the scheme in force for the time being.

The fact that some claimants were or continued to be excluded from the scheme by amendments neither demonstrated that it was perverse nor rendered it so. Like any essay in bounty it was tempered with expedience. The exercise of the Home Secretary's discretion under prerogative power could not be impugned.