Significant victory for victims of trafficking seeking Exceptional Case Funding for legal assistance to prepare applications for criminal injuries compensation

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 ECHR.

Shu Shin Luh of Doughty Street’s Public Law Team successfully secured a quashing of the refusal to fund legal advice and assistance under the Exceptional Case Funding to 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. Shu Shin led Maria Moodie, of Garden Court Chambers, and was instructed by Jamila Duncan-Bosu and Freddy Russell of the Anti-Trafficking and Labour Exploitation Unit.

Facts

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 2-year time limit for making such a claim.

Each Claimant 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.

Further to the claims being issued, the Director withdrew the decisions under challenge and agreed to remake them. 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. Fresh ECF refusals were made in August 2024 The Director found that an application for criminal injuries compensation 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. 

Judgment

In quashing the Director’s August 2024 refusals, Mr. Justice Calver held that denying ECF to the Claimants would breach their Article 6 rights (§106, 155). 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 that the CICS application was straightforward and all the Claimants needed to do was to get “their foot in the door”, even if that meant submitting a bare application form that was likely to be rejected. The Judge held that 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 Claimants 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, it owed a positive obligation under Article 4 to ensure that these victims would be able to access compensation from the state for criminal injuries suffered in the course of their trafficking, a position supported by the recent Strasbourg case of Krachunova, read with Article 15(4) of Council of Europe Convention on Action against the Trafficking in Human Beings and Article 2 of the European Convention on the Compensation of Victims of Violent Crimes.

Mr. Justice Calver concluded that, notwithstanding the skill with which the argument was put, the jurisprudence of the Strasbourg Court has not yet gone as far as to accept that Article 4 ECHR imposes an obligation on contracting states themselves to provide financial compensation to victims of trafficking perpetrated by private third parties and as such the Director had not erred in concluding that Article 4 was not engaged by the decision not to grant ECF.

As for Article 8, the Judge relied on R (Oji) v Director of Legal aid Casework [2024] 4 WLR 53 [at § 82-85] to conclude that whilst the lives of each of the Claimants would be made materially better by an award of compensation, the refusal of an award of compensation under the CICS does not have a sufficiently close or significant impact upon the Claimants’ family life or private life to engage Article 8 and as such the Director had not erred in this respect (§ 148, 152).

Wider relevance

The Court’s conclusion turned on consideration of the Claimants’ individual circumstances and characteristics, but 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. They would equally face barriers to apply to the CICS without assistance given the application form requires victims to provide details about the criminal injuries they have sustained, details of the crime that caused the injuries, how the injuries impact their daily life. If the application is out of time, an application is also required to account for the entire period of any delay if the application is being made “out of time”. 

Judgment can be found here. 

ATLEU has published a CICA Toolkit that can be found here.