In a Judgment handed down today (Monday 9 August 2021) in the High Court, Mrs Justice Lang agreed with a child sexual abuse survivor that the Justice Secretary’s decision not to consult on the 'unspent conviction rule' in relation to Criminal Injuries Compensation was a breach of his promise, and ordered he conduct a public consultation.
The Judge commented that: “the Inquiry [IICSA] and many other well-informed persons have recommended revision of the exclusionary rule.”
The challenge was brought by Kim Mitchell, a survivor of a sexual assault by a school teacher when she was aged eight. She was refused Criminal Injuries Compensation for the harm she suffered, due to a very minor Public Order Act offence she committed nearly 30 years later.
The 'unspent conviction rule' was first brought in by the government in 2012. It means victims are automatically excluded from compensation if they have an unspent conviction at the time they apply – regardless of their specific circumstances. This includes where their own convictions are a direct result of being a victim of crime. Prior to 2012, there had always been a discretion to consider such exceptional circumstances.
The rule is subject to strong criticism by many victims’ organisations, including Rape Crisis England & Wales, who argue it disproportionately discriminates against survivors and victims of child sexual abuse and other forms of sexual violence.
In 2018, after hearing extensive evidence, the Independent Inquiry into Child Sexual Abuse (IICSA) recommended the rule be revised. The Government set out in its own Victims Strategy that it would consult on the IICSA recommendations.
Yet when the consultation was published, the Ministry of Justice shocked survivors and victims’ organisations by refusing to consult as promised. Instead, the government outlined that an internal review had been conducted and the rule would not be changed. They decided that survivors like Ms Mitchell would not be given an opportunity to set out their views. Details of the internal review have never been published.
Ms Mitchell was devastated that she and other survivors would not be given their long-awaited opportunity to persuade the government to make the rule fairer, and challenged the Justice Secretary’s decision not to consult. Today (9 August 2021) her High Court challenge succeeded.
Ms Mitchell, the Claimant, said:
“It shouldn’t take a court case to make the government do what it has promised. But I’m pleased this decision means victims of child abuse like me can now tell policy makers directly how the rule affects us. The rule is unfair and must be changed. I hope this win allows others to feel empowered to speak out.”
Debaleena Dasgupta, Ms Mitchell’s solicitor at Centre for Women’s Justice said:
“If it was not for Ms Mitchell’s determination and willingness to hold the Justice Secretary to his promise, this consultation would not be going ahead. Too often the government makes public statements which imply they will address concerns, but then take decisions behind closed doors which don’t. They also sought to appeal, but were categorically refused permission to do so. I hope for the sake of sexual assault survivors they do not appeal again - that public money would be better spent on ensuring a full and fair consultation takes place as soon as possible.”
Jayne Butler, CEO of Rape Crisis England & Wales said:
"Through our frontline work with survivors and victims of child sexual abuse and all forms of sexual violence, we've seen time and again how unjust rules like this one discriminate against people who have been through significant trauma.
Criminal injuries compensation can never 'make up for' experiences of sexual violence and abuse, but it can support survivors and victims to address some of the long-term impacts on their health and lives, and it is the least they deserve.
We warmly congratulate Kim Mitchell and her legal team at our partner organisation the Centre for Women's Justice for this important breakthrough. But once again, it has been left to the strength and determination of individual survivors and their supporters to fight for the basic rights to criminal and social justice that the government should be upholding as a matter of course."