Supreme Court, [2021] UKSC 27, [2021] 1 WLR 3746, 9 July 2021

Lord Lloyd-Jones, Lady Arden, Lords Hamblen, Burrows and Stephens

The question for the Supreme Court was whether the exclusion of victims of human trafficking, from compensation under the 2012 iteration of the Criminal Injuries Compensation Scheme (“the CICS”) on the ground of their previous criminal convictions unjustifiably discriminated against them contrary to Articles 4 and 14 ECHR. The Court (per Lord Lloyd-Jones with whom Lady Arden and Lords Hamblen, Burrows and Stephens agreed) adopted broad approaches both to “ambit” and to “other status”. It accepted that the discrimination fell within Article 4 ECHR and that “having an unspent conviction which resulted in a custodial or community sentence is a status for the purposes of art 14”.

Because the claimants’ criminal convictions pre-dated and were unconnected with their status as victims of human trafficking the Court rejected their Thlimmenos claim that they had were entitled, by reason of being trafficked, to be treated differently from other CICS applicants with criminal convictions. The court did accept that the claimants had been discriminated against as people victims of trafficking with relevant unspent convictions, but concluded, having considered the approach of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see associated blog), that such discrimination was justified.

The claimants had grown up in State care in Lithuania and had convictions there prior to being trafficked from Lithuania to the United Kingdom and subjected to labour exploitation and abuse. The traffickers were convicted and imprisoned and slavery and trafficking prevention orders were made under the Modern Slavery Act 2015 but the claimants were denied compensation because they each had an unspent conviction which resulted in a custodial sentence. They challenged their exclusion from the scheme on the basis, inter alia, that it breached A1P1 read with Article 14. Before the Court of Appeal the claimants argued that the CICS was incompatible with art 17 of the EU Directive because it mandatorily excludes some victims of trafficking from an award by virtue of their unspent convictions, also (and relevant for the purposes of this blog) that the rule constituted discrimination contrary to Articles 14 and 4 ECHR. The Court of Appeal dismissed the appeal on both grounds, assuming for the purposes of the proceedings that the Article 14 claim fell within the scope of Article 4. The Court of Appeal further accepted that the claimants, by reason of their unspent convictions, enjoyed an “other status” for the purposes of Article 14 but ruled that the discriminatory effect of the exclusionary rule was justified. The claimants further appealed to the Supreme Court.

At §22 Lord Lloyd-Jones cited the four questions set out by Lady Hale in  R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21; [2019] 1 WLR 3289 at §136, namely: “(i) Does the subject matter of the complaint fall within the ambit of one of the substantive Convention rights? (ii) Does the ground upon which the complainants have been treated differently from others constitute a ‘status’? (iii) Have they been treated differently from other people not sharing that status who are similarly situated or, alternatively, have they been treated in the same way as other people not sharing that status whose situation is relevantly different from theirs? (iv) Does that difference or similarity in treatment have an objective and reasonable justification, in other words, does it pursue a legitimate aim and do the means employed bear ‘a reasonable relationship of proportionality’ to the aims sought to be realised” (citing Stec v United Kingdom (Applications nos. 65731/01 and 65900/01) (2006) 43 EHRR 47 §51).

At §§27-28 his Lordship referred to the decision in Rantsev v Cyprus and Russia (Application no.25965/04) (2010) 51 EHRR 1 in which the ECtHR recognised for the first time that trafficking falls within the scope of Article 4, also to the decision in Chowdury v Greece (Application No 21884/15, unreported, 30 March 2017) which concerned the treatment of Bangladeshi migrants working without work permits on a strawberry farm in Greece. There the ECtHR (First Section) “(at paras 86-89) reiterated that states have positive obligations, in particular to prevent human trafficking and protect the victims thereof and to adopt criminal law provisions which penalise such practices”. The Court there found that Greece had breached Article 4 by failing to ensure adequate compensation to applicants who had been subject to unlawful violence by their captors. Lord Lloyd-Jones ruled, however, that this did not assist the claimants as the relevant aspect of the case had been “concerned with the State’s positive obligations in relation to the effectiveness of the investigation and judicial proceedings” rather than with “any obligation on the state to pay compensation to victims of trafficking but the obligations of the perpetrators of trafficking to pay compensation and the state’s obligation to secure effective judicial remedies for the vindication of the rights of victims against perpetrators”, declaring it “highly significant that in the earlier section of its judgment, in which it set out certain general principles relating to art 4 (at paras 86-89), the Court made no reference to a general duty on states to compensate victims of trafficking perpetrated by private third parties”. He went on to point out at §30 that the Grand Chamber in SM v Croatia (Application No 60561/14, Grand Chamber, 25 June 2020) set out the nature and scope of the positive obligations under Article 4 ECHR, making no reference to any “general duty to compensate victims of trafficking perpetrated by private third parties for which the appellants contend”. And at §§32-33 he rejected the claim that the Convention Against Torture assisted the claimants, this because (1) it did not “impose on contracting states a general obligation of the kind for which the appellants contend” and had not been incorporated in domestic law.

Notwithstanding all of the above, Lord Lloyd-Jones accepted that the discrimination at issue fell within the scope of Article 4 for the purposes of Article 14:

[38] … While “the English courts have made rather heavy weather of the ambit point” (In re McLaughlin, para 20 per Lady Hale) the ECtHR has taken a much more relaxed approach to the issue. This is apparent from Zarb Adami v Malta [Application no. 17209/02] (2006) 44 EHRR 3. Mr Adami complained of discrimination on grounds of sex in respect of his call for compulsory jury service. He relied, inter alia, on art 4 in conjunction with art 14. The ECtHR held that although art 4(3)(d) excludes “any work or service which forms part of normal civic obligations” from the prohibition in art 4(2) on “forced or compulsory labour”, the fact that a situation corresponded to a normal civic obligation did not preclude the applicability of art 4 in conjunction with art 14. The concurring judgment of the President, Judge Sir Nicolas Bratza, is particularly illuminating. He observed at O-I7:

“The central question which arises is what constitutes ‘the ambit’ of one of the substantive articles, in this case art 4… according to the constant case law of the Court, the application of art 14 not only does not presuppose the violation of one of the substantive Convention rights or a direct interference with the exercise of such right, but it does not even require that the discriminatory treatment of which complaint is made falls within the four corners of the individual rights guaranteed by the article. This is best illustrated by the fact that art 14 has been held to cover not only the enjoyment of the rights that states are obliged to safeguard under the Convention but also those rights and freedoms that a state has chosen to guarantee, even if in doing so it goes beyond the requirements of the Convention. (See, eg the Belgian Linguistics Case (No 2) (Merits) [Application nos. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64] (A/6) (1979-80) 1 EHRR 252, at para 9; Abdulaziz, Cabales and Balkandali v United Kingdom [Application nos. 9214/80; 9473/81; 9474/81] at para 71.) This would indicate in my view that the ‘ambit’ of an article for this purpose must be given a significantly wider meaning than the ‘scope’ of the particular rights defined in the article itself. Thus, in the specific context of art 4 of the Convention, the fact that work or service falling within the definition of ‘normal civic obligations’ in para 3 are expressly excluded from the scope of the right guaranteed by para 2 of that article, in no sense means that they are also excluded from the ambit of the article seen as a whole.

At §39 Lord Lloyd-Jones accepted that while the CSIS was “not limited to victims of trafficking, it extends its benefits to them” and they had been specifically considered in the preparation of the scheme. Since the UK had chosen to apply some measure of protection to victims of trafficking by means of a measure which had “a more than tenuous connection with the core value of the protection of victims of trafficking under art 4”, the threshold condition for application of Article 14 was satisfied,.

His Lordship went on to consider whether the alleged discrimination had been connected with a relevant status, at §42 acknowledging the broad approach taken to this question by the ECtHR in Clift v United Kingdom (Application No 7205/07, 13 July 2010), in particular, its rejection at §56 of “earlier notions that ‘any other status’ must relate to innate or inherent characteristics” and “address[ing] the issue of status in terms which, at the very least, suggest disapproval of an over-technical approach”. He had “no doubt” that being a victim of trafficking amounted to a relevant status (§46). He also accepted that the claimants could rely on their status as persons with unspent convictions, accepting that the decision of the House of Lords in  (R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 AC 484), which would have indicated a contrary conclusion,  was inconsistent with the later decision in Clift v United Kingdom and with the Supreme Court’s decision in R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51. He referred to the judgments of Ladies Black and Hale and Lords Hodge and Mance before stating at §57 that the recent jurisprudence in the Supreme Court and the ECtHR had “shown a significant shift towards taking a broad view of status under art 14” and that “as a result, the concept of ‘other status’ must now be generously interpreted”; and concluding that “it seems to me artificial to attempt any longer to distinguish between the gravity of an offence and the characteristics of an individual offender”.

Lord Lloyd-Jones went on at §§58-67 to address the “individual existence condition” which had arisen in the caselaw, noting the respondents’ claim that “the status founded on unspent convictions for which the appellants contend exists solely by reference to the terms of the legislation which they are challenging [and] … has no independent character so as to form any identifiable group of people, as distinct from those who are excluded by the terms of the CICS itself”. He noted Lord Bingham’s suggestion in R (Clift) §28 that “I do not think that a personal characteristic can be defined by the differential treatment of which a person complains”, a similar point having been made by Lord Hope who indicated that (§59) all of the grounds listed by Article 14 “exist independently of the treatment of which complaint is made. In that sense they are personal to the complainant”. Lord Lloyd-Jones noted that the ECtHR in Clift v UK had been “dismissive of the point” and had taken the view that “whether there is a difference of treatment based on a personal or identifiable characteristic is a matter to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the objective of the Convention is to guarantee practical and effective rights. At §61 he noted that the issue had “reappeared frequently in domestic cases” (including in Stott at §210, per Lady Hale and in R v Docherty (Shaun) [2016] UKSC 62; [2017] 1 WLR 181) and that “the position before domestic courts in this jurisdiction remains far from clear”. The Supreme Court had in Docherty  rejected a claim of discrimination based on the claimant’s being a prisoner with an indeterminate sentence because the status on which he sought to rely was defined entirely by the alleged discrimination, this not having been the case in Clift. Lady Black had taken the view in Stott that the “independent existence” requirement was inconsistent with the decision of the ECtHR in Clift but Lady Hale regarded the “true principle [as being] that the ‘status’ must not be defined solely by the difference in treatment complained of” (emphasis added). At §65 Lord Lloyd-Jones agreed that Docherty was consistent with Clift v UK and, citing Lord Hope in Clift §§67-68, concluded that the distinction in CICS between persons with unspent convictions which did, and which did not, result in community or prison sentences was made by CICS but did not “derive entirely from that provision. There are other consequences of being an offender with an unspent conviction under para 3 which derive from the Rehabilitation of Offenders Act 1974 and other statutes which set out the differing implications of various unspent convictions. As Ms Kaufmann put it in argument, having an unspent conviction within para 3 has significance independent of the CICS. The CICS simply adds a new consequence” (§65). His Lordship went on to agree with the observations of Lord Reed on the independent existence issue in his judgment in SC §§69-71 that “there is no requirement that the status should have legal or social significance for other purposes or in contexts other than the difference in treatment of which complaint is made.

Lord Lloyd-Jones proceeded to reject the Thlimmenos claim that victims of trafficking must be treated differently from other victims of crime because they are not in an analogous position, stating at §71 that while “people trafficking is a particularly grave crime and that its victims, who are often vulnerable, can suffer grievously … many other crimes are no less serious, their victims equally vulnerable and the consequences they suffer at least as grievous. I am unable to identify any feature of the offence of people trafficking which could require preferential treatment to be accorded in the present context to victims of trafficking over victims of other serious crime”. He did accept that victims of trafficking were distinguishable from victims of other crimes because (§71) they were “themselves liable to commit crimes arising from their own trafficking for which they are blameless. For example, a victim of trafficking may be forced to commit immigration offences, to work in a cannabis farm or to use false documentation in order to work”. At §73 his Lordship noted that “victims of trafficking are treated differently from others who commit criminal offences”, the Modern Slavery Act 2015 providing a defence to trafficking victims compelled to commit an offence, though the claimants argued that these safeguards were insufficient, and at §75 declared himself “willing to assume that it is arguable that victims of people trafficking who have committed criminal offences in connection with their being trafficked …  are entitled to be treated differently in certain respects from other offenders”. But the difficulty for the claimants was that their offending preceded their being trafficked to the UK and was unrelated to it. To his Lordship, this was “a complete answer to the appellants’ case that they have been subjected to discrimination founded on their status as victims of people trafficking”.

His Lordship went on to point out at §76 that “in the courts below, the case in relation to discrimination was put on the basis of the impact of the exclusionary rule on victims of trafficking generally” and that there was “no evidence before the court as to the effectiveness of the anti-punishment measures”. It was, accordingly, (§77) “not necessary to address the observations of Gross LJ in the Court of Appeal …  to the effect that if a victim of trafficking was for some reason unable to benefit from any of the non-punishment protections, the circumstances of the offending would likely be so divorced from the trafficking as to point to his or her not being a blameless victim of a crime of violence”.

This disposed of the claimant’s case as victims of people trafficking. Turning to their claim to be discriminated against as victims of trafficking with relevant unspent convictions, Lord Lloyd-Jones stated at §79 that the question in relation to this claim was one of justification.. At §81 he cited Stec v UK (Applications nos. 65731/01 and 65900/01) (2006) 43 EHRR  74 §§51-52  to the effect that “A difference of treatment is … discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised”, with the state enjoying a “margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment” which varied “according to the circumstances, the subject matter and the background” and which generally meant in relation to general measures of economic or social strategy that the Court would “respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.” At §82 his Lordship referred to the decision of the Supreme Court in SC §§98-142, concluding that the “manifestly without reasonable foundation” formulation was appropriate in the instant case by reason of the social welfare policy context (§83), the fact that the statutory instrument has been reviewed by Parliament (§84, relying on Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39; [2014] AC 700 §44 per Lord Sumption) and the absence of any suspect ground (§85).

It was clear that the legislation was intended to direct limited resources to “those who have themselves obeyed the law and not cost society money through their offending behaviour”, which was “clearly a legitimate aim” (§87). The claimants did not contest this and did not suggest that the exclusionary rule was not rationally connected with the aim but argued that the rule was “not proportionate in that it imposes a bright line rule without the possibility of the exercise of a discretion in favour of an applicant, which had been a feature of earlier iterations of the CICS” (§88). At §89 Lord Lloyd-Jones cited Lord Bingham in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15; [2008] AC 1312, §33 to the effect that “… [L]egislation cannot be framed so as to address particular cases. It must lay down general rules: … A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.” Having stated that “The drawing of dividing lines between eligibility and non-eligibility is an inevitable feature of legislation in the field of social welfare and compensation” and that “In many cases there will be room for disagreement as to where a line should be drawn but the courts will be slow to interfere” (citing Lord Neuberger in R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63,  [2009] AC 311, §57, Lord Mance in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250 §51 and Lord Hughes in R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57, [2015] 1 WLR 3820, §60). At §90 his Lordship concluded that the bright line selected in this case could “clearly” be justified in view of the fact that “we are concerned with an area of policy in which a considerable degree of latitude is accorded to the legislator as to the form and scope of the CICS”; “the object of the CICS, namely the allocation of limited resources to deserving victims of crime as an expression of public sympathy, is such that the legislator is entitled to adopt a scheme which operates by clearly defined rules” and “the CICS was approved by Parliament following an extensive process of consultation and an equality impact assessment [and t]he government did consider the extent to which there should be a discretion exercisable in individual cases …” The exclusion under challenge (§92) “has the legitimate objective of limiting eligibility to compensation to those deserving of it. Furthermore, the measure satisfies the requirement of proportionality. It is rationally connected to the objective. The measure is no more intrusive than it requires to be and it strikes a fair balance between the competing interests.”

Claimant: P Kaufmann QC, S Luh, instructed by Leigh Day (London)

Respondents: B Collins QC, R Moretto instructed by the Government Legal Department

Intervener (written submissions only): K Monaghan QC, J Robottom, A Habteslasie instructed by Freshfields Bruckhaus Deringer LLP (London)