Jessica Muurman, pupil barrister at 12KBW, analyses the recent judgment in R (Criminal Injuries Compensation Authority) v First-tier Tribunal v GHI [2024] UKUT 3 (ACC), which concerns the Criminal Injuries Compensation Scheme 2012 and its interaction with ‘Daisy’s Law’ in the Victims and Prisoners Bill.

Background

GHI, the interested party, was born following the rape of her birth mother. Aged 18 she learnt of the circumstances of her conception, and was subsequently instrumental in securing the conviction of her birth father.

On 22 June 2020, GHI made an application for criminal injuries compensation for “ongoing psychological issues” suffered. Both GHI’s initial application and the subsequent review were refused by the Criminal Injuries Compensation Unit (“CICA”), on the basis that GHI was not a “direct victim” under paragraph 4 of the 2012 Scheme.

GHI appealed the review decision to the First-tier Tribunal (“FtT”). In addition to pursing the line of argument that GHI was a direct victim under paragraph 4, she argued that, in the alternative, she was entitled to compensation under paragraph 5(1)(c) and/or paragraph 6. These paragraphs provide for eligibility to extend beyond direct victims to those who take an exceptional and justified risk to contain/remedy the consequences of crime (paragraph 5(1)(c)) and/or those who are present at and witness a loved one sustaining injury as a direct victim or in the manner prescribed by paragraph 5 (paragraph 6).

GHI further argued that paragraphs 4 and 6 were discriminatory, contrary to Article 14 European Convention on Human Rights, and should be read down under the Human Rights Act 1998 to include children who were conceived as the victim of a rape. The FtT allowed the appeal under paragraph 5(1)(c) of the 2012 Scheme. Paragraph 5 states that “a person may be eligible for an award if they sustain a criminal injury which is directly attributable to their taking an exceptional and justified risk for the purpose, in a relevant place, of containing or remedying the consequences of a crime.” The FtT made factual findings that GHI remedied the consequences of a crime in pursuing the rape conviction and, in doing so, held that she took an exceptional yet justified risk to her own mental health. In essence, the FtT found that GHI met the requirements for compensation under paragraph 5(1)(c).

The Instant Case

A judicial review of the FtT decision was sought by CICA, on the basis that the FtT had exceeded its jurisdiction. The core issue to be determined by the Upper Tribunal (“UT”), therefore, was: what is the scope of the FtT’s powers in relation to an appeal under the 2012 Scheme?

Determination

The UT quashed the decision of the First-tier Tribunal and remitted the matter to the CICA.

Judge Jacobs discussed the effect of R(SB) v First-tier Tribunal and Criminal Injuries Compensation Authority [2014] UKUT 497 (AAC), [2015] AACR 16. SB concerned the predecessor 1996 and 2001 Schemes. Under those schemes, the scope of the FtT was limited to deciding whether or not the CICA’s review decision was correct on the issues appealed. SB decided that the FtT does not have the power to determine whether any award or compensation should be made. Rather, the case must be remitted back to CICA to determine the outcome of each individual case.

Judge Jacobs determined that the reasoning in SB applies to the 2012 Scheme, with one qualification: that, in addition, the FtT may direct the claims officer to consider a ground of eligibility that was not part of their initial review decision. In effect, the FtT can allow an appeal if: (a) the reviewing claims officer should have considered another ground on the evidence and information available at the time of the review; or (b) if such evidence or information is presented to the tribunal on appeal. This is because an applicant may be denied a right of appeal if claims officers limit the scope of the review decision and then decline to accept that there was an error when the applicant appeals against the decision. Consequently, the FtT decision was quashed, and GHI’s application was remitted to the CICA to enable her eligibility under paragraphs 4 and 5 of the 2012 Scheme to be reconsidered. Judge Jacobs further noted that her human rights arguments could be considered by the CICA.

Comment

While the decision was no doubt disappointing for GHI, who is not assured of compensation on the basis of the FtT’s decision and must persuade the CICA on the merits, this decision benefits applicants more broadly.

The 2012 Scheme prevents multiple applications being made in relation to the same criminal injury. The additional qualification from Judge Jacobs enlarges the FtT’s jurisdiction, and provides a safeguard to ensure that applicants’ cases can be considered at their highest. If, as in the instant case, further grounds for eligibility are raised within the appeals process, the CICA can be required to consider these grounds when the case is remitted to them. However, and perhaps more disappointing to applicants, the FtT may not exceed its jurisdiction, which – following GHI – is limited to deciding whether the reviewing officer had failed to consider another ground for eligibility. The FtT has no jurisdiction to make the decision the officer should have made on the other ground.

Ultimately, the question of whether a child conceived as a result of rape can be afforded compensation by CICA remains open. GHI’s case will return to CICA, but decisions on individual compensation cases are not made public. It remains to be seen, therefore, how CICA will deal with such applications. Nevertheless, of note at the time of writing, Daisy’s Law, which is intended to amend the meaning of “victim” to include a person whose “birth was the direct result of criminal conduct” (cl. 1(2)(b)), is moving through Parliament as part of the Victims and Prisoners Bill. If the Bill becomes law, various services and bodies allied to the justice system will be required to extend their services to individuals such as GHI. However, the Bill is notably silent on compensation. It remains to be seen if, and how, the CICA will respond to this broadening definition of victim. There will no doubt be argument about this. In any event, going forward, this Bill and the CICA’s response to it should be closely followed by representatives and supporters of children born as a result of rape.

Jessica Muurman