25th October 2022 CICAP
The following summary is extracted from the ACAL Newsletter of December 2022 by David Greenwood of Switalskis Solicitors pp 18 – 20
I represented two claimants in appeals to the Criminal Injuries Compensation Appeals Panel in October, both appeals attempt to extend the interpretation of the 2012 scheme to cover an important subsection of cases not currently covered.
This case involved a woman conceived as a result of rape of a minor.
- The applicant was born in the 1970s. At the time of her birth her mother was 13 years old. The Claimant was conceived 9 months earlier as a result of the rape of her mother by her natural father, Carvel Bennett. As a victim of a sexual offence the Claimant’s birth mother cannot be named.
- The rape occurred when Bennett, a friend of the birth mother’s parents, asked for her to babysit his children. When the birth mother attended his home Bennett forced himself upon her.
- The birth mother reported the rape to the police at the time and she was interviewed, but a decision was made not to prosecute. Social services were involved at the time of the birth, the birth mother residing in a mother and baby home immediately prior to her delivery. Following her birth, the Claimant was placed in foster care.
- Given both the circumstances of the conception and her young age, the birth mother agreed that the Claimant should be adopted.
- At the age of 18 the Claimant accessed her social services files and for the first time learnt that she had been conceived as a result of rape. She subsequently re-established contact with her birth mother.
- From the mid 2010s the Claimant sought to initiate a prosecution of Bennett for the rape of her birth mother. The police investigation commenced in September 2019. The birth mother provided a statement. The Claimant herself provided DNA evidence to establish that Bennett and her birth mother were her natural parents. Bennett was convicted of the rape and sentenced to 11 years at the Birmingham Crown Court in July 2021 – press link here – https://www.theguardian.com/uk-news/2021/aug/03/rapist-jailed-fight-justice-daughter-born-following-attack-carvel-bennett
- In June 2020 the Claimant applied to the CICA for compensation in respect of the psychological injury which she had suffered. Her application was refused in November 2020. While it was accepted that a crime of violence had occurred it was determined that the Claimant did not fall within paragraph 4 of the Criminal Injuries Compensation Scheme 2012 (the Scheme) because she was not a direct victim of the rape perpetrated by Bennett.
- The Claimant applied for a review of the initial decision. On 14th April 2021 the reviewing officer again declined to make an award on the basis that the Claimant did not fulfil the definition of a direct victim under paragraph 4. The review letter states, “It was your birth mother who was the direct victim of a crime of violence and it was she who sustained a criminal injury. It is not possible for you to have been the direct victim of violence in relation to the crime, as you had not yet been conceived. This means that you could not then have sustained a criminal injury as defined under the terms of the Scheme”.
- The appeal was heard on 15th October 2022. Adam Weitzman KC represented the Appellant assisted by his junior, Joshua Yetman.
Grounds of appeal
10. 1st Ground of Appeal: The Claimant is a direct victim of a crime of violence for the purposes of paragraph 4 of the Scheme.
11. 2nd Ground of Appeal: If her application is excluded by paragraph 4 this is discriminatory and so contrary to Article 14 of the European Convention on Human Rights (the Convention). To avoid such an unlawful act the words “direct victim” in paragraph 4 should be construed to include children who are conceived as the victim or rape.
Article 14 reads :
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
The right being violated here is a right to fair compensation under the scheme which is expressed in Article 1 Protocol 1 as a possession.
Article 1 Protocol 1 reads :
“Article 1 of Protocol No. 1 – Right to property “1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
12. The CICAP panel chaired by Judge Farrelly declined to give a decision on the day and a written decision is awaited.
13. This is an important case which could open up the CICA to many similar claims.
David Greenwood
18th November 2022