Maria Moodie of the Garden Court Public Law Team was led by Shu Shin Luh of Doughty Street Chambers, and instructed by Jamila Duncan-Bosu and Freddy Russell of Anti Trafficking & Labour Exploitation Unit (ATLEU).
The High Court declared that denial of Exceptional Case Funding (‘ECF’) to four victims of trafficking to access legal advice, to prepare an application for criminal injuries compensation, breached their rights under Article 6 European Convention on Human Rights (‘ECHR’).
Counsel successfully secured a quashing of the refusal to fund legal advice and assistance under the ECF, for the Claimants to apply for criminal injuries compensation for crimes of violence suffered as part of their trafficking experiences. The High Court made an order that ECF be granted, subject to the Claimants’ meeting the merits and financial means criteria under the civil legal aid regulations.
The Claimants were each trafficked to the UK for the purposes of sexual exploitation and forced labour. Each were subjected to serious physical and sexual violence and sustained psychiatric injuries. On the face of it, each Claimant was entitled to apply for compensation from the Criminal Injuries Compensation Scheme (‘CICS’), a statutory scheme intended to aid recovery and reflect public sympathy for those who have been the victims of particularly distressing crimes.
However, each faced significant hurdles to making the application without legal assistance, owing to the nature and extent of their mental disability, trauma, barriers related to language, and cognitive impairment. They had no friends, family, or support workers who were able or willing to assist with a CICS application. The Claimants’ applications were complex also because they were already outside the normal two-year time limit for making such a claim.
Each of the Claimants applied for ECF under section 10 of the Legal Aid Sentencing and Punishment of Offenders Act 2012, between September 2023 and January 2024, relying on Articles 4, 6 and 8 ECHR to support their need for legal advice and assistance to prepare and submit their applications for criminal injuries compensation. The Director of Legal Aid Casework refused each of their applications on application and on review.
The claims were issued in June 2024 challenging these refusals. The Director withdrew the decisions under challenge and agreed to remake them. However, permission was nevertheless granted by Mr Justice Ritchie, who rejected the Director’s contention that the withdrawal of the decisions under challenge rendered the claims academic, unless the remade decisions were grants of ECF.
The Director made fresh refusals of ECF in August 2024, contending that an application for ECF did not engage Article 4 or 8 ECHR, and in any event, withholding legal aid would not breach those rights or Article 6 ECHR. It was the Director’s case that the CICS application was straightforward, and there were dedicated websites and guides to assist victims of crimes of violence to apply for compensation without legal assistance. The Director’s fresh August 2024 decisions were challenged by amended grounds for judicial review.
The Criminal Injuries Compensation Authority (‘CICA’) was granted permission to intervene on the premise that the Claimants’ challenge impugned the CICS arrangements.
In quashing the Director’s August 2024 refusals, Mr. Justice Calver held that:
In respect of Article 6 ECHR [at § 73 – 114]
Article 6 concerned effective participation of an individual with the decision-making process. Mr Justice Calver held that it was clear that each Claimant, “as unrepresented litigants, would be unable to present their case effectively and without obvious unfairness as a result of the denial of ECF for legal aid; and the factual circumstances of each of their cases fall well below “the line of inability to participate effectively in seeking compensation under the scheme without obvious unfairness” (§ 80).
The Judge rejected the suggestion made by the Director that the CICS application was straightforward for victims of trafficking who have suffered significant past trauma and face the other barriers identified by the Claimants (§98-104). The Judge also rejected the suggestion that all the Claimants needed to do on their own was to get “their foot in the door”, even if that meant submitting a bare application form that was likely to be rejected.
Rather, Article 6 fairness demands that the Claimants be able to present their cases for compensation effectively on making the application (not just on review or appeal) (§96). Having accepted that each Claimant did not have the psychological capacity to make the application without assistance, the Director’s conclusion that they could nevertheless make an effective CICS application without legal assistance was internally inconsistent (§91). It was unrealistic to expect that the provision of a telephone helpline by CICA could cure the complexity of the CICS process faced by the Claimants (§ 105-110).
The Court held that the Director’s failure to make an exceptional case determination under sections 10(2)(a) and 10(3)(a)(i) of LASPO on the facts of the Claimants’ individual cases was unlawful, as a failure to make the services available would result in a breach of their Article 6 rights (§ 106, 155).
In respect of Article 4 ECHR [at § 115 – 133]
On the Claimants’ behalf, it was contended that once the Government had voluntarily chosen to confer benefits on victims of trafficking by setting up the CICS and extending it to them, in order to comply with its positive obligation under Article 4 to protect victims and potential victims of trafficking, it must ensure that these victims are able to access compensation from the state for criminal injuries suffered in the course of their trafficking. This is a position supported by the recent Strasbourg case of Krachunova when read together with Article 15(4) of Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), as well as Article 2 of the European Convention on the Compensation of Victims of Violent Crimes.
Wider relevance
Although the Court’s conclusion that the denial of ECF was a breach of Article 6 ECHR turned on consideration of the Claimants’ individual circumstances and characteristics, the outcome of this case is likely to have wider significance for other victims of trafficking requiring legal aid funding to apply for criminal injuries compensation.
Many victims of trafficking face similar language barriers, a lack of support network, and experience mental health and cognitive difficulties. As such, the findings in this judgment and in particular the Court’s unequivocal and fully reasoned rejection of the Director’s assertion that the CICS process is straightforward for individuals such as the Claimants, can be squarely applied to other victims of trafficking who share similar characteristics.
The CICS application form requires substantive explanation by an applicant of each criminal injury they have sustained, details of the crime that caused the injuries, how the injuries impact their daily life, as well as being required to account for the entire period of any delay if the application is being made “out of time”. Specialist legal advice and assistance with completing the CICS application form and making supporting representations may be critical to supporting certain victims of trafficking to access compensation to aid their recovery, for which ECF may now be available.
