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Compensation unavailable for victims of trafficking with unspent convictions

A and B v Criminal Injuries Compensation Authority and Secretary of State for Justice [2018] EWCA Civ 1534

The appellants lost their appeal against the dismissal of their claim for Judicial Review of the lawfulness of the Criminal Injuries Compensation Scheme (the scheme), insofar as the scheme excludes applications for compensation from those with unspent criminal convictions which resulted in a custodial sentence or community order.

Details

The appellants were Lithuanian nationals who were trafficked to the UK and subsequently exploited and abused.  Following the conviction of their traffickers, the appellants applied to the scheme for compensation.   Their applications were refused because of the scheme’s exclusionary rule.  The appellants application for Judicial Review of the scheme was dismissed.

The appellants argued that the scheme’s exclusionary rule breached the EU’s Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, which requires Member States to ensure that victims of human trafficking have access to existing criminal compensation schemes.  In addition, they argued that their ECHR article 14 (non-discrimination) and article 4 (against slavery) rights were breached.

It was held that the exclusionary rule was justified.  The crimes which resulted in the unspent convictions pre-dated the trafficking and there was no nexus between the two.  The fact that the appellants were vulnerable at the time of their offending was irrelevant.  The scheme is in place to compensate the blameless victims of crime and it is reasonable that it has limitations.  Parliament had approved the rule and the court should not intervene.

Commentary

This case raises interesting questions about the treatment of victims of trafficking and the relevance of previous convictions, both of which are important issues from a youth justice perspective. Can it fundamentally be right that a victim of trafficking is precluded from receiving  criminal injuries compensation due to an irrelevant previous conviction?  Presumably the youth of the trafficking victim would strengthen the argument that the current position is unjust.