A child sex abuse victim who was refused criminal injuries compensation succeeds in legal challenge of secretary of state for justice’s failure to consult the public.
In the Judgment handed down today, Mrs Justice Lang agreed that the Justice Secretary’s decision not to consult was a breach of his promise and ordered he conduct a public consultation. She orders the Justice Secretary re-consider his decision at that stage.
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 an historic sexual assault by a school teacher when she was aged 8. 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 result of being a victim. 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, arguing it disproportionately affects victims of child sex abuse. In 2018, after hearing extensive evidence, the Independent Inquiry into Child Sex 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, devastated that she and other survivors would not be given their long-awaited opportunity to persuade the government to make the rule fairer, challenged the Justice Secretary’s decision not to consult. Today (9 August 2021) her High Court challenge succeeded. A consultation has now been ordered by the Court.
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.”