“67. …[T]he first limb (s.10(3)(a)) engages an objective correctness standard of review; whereas the second limb (s.10(3)(b)) engages a reasonableness standard of review. This two-tiered approach reflects the nature and structure of the questions; and finds support in Gudanaviciene §§90-91, 123; Thompson v Director of Legal Aid Casework[2017] EWHC 230 (Admin) [2017] 1 Costs LR 163 at §§23, 34, 37; and Oji at §29. 71. …The question [under the First Limb] is not whether the Claimant's position would have been "improved by representation", which "will very often be the case" (Thompson §34). The question is whether the circumstances fell below a line of inability to participate effectively in the administrative asylum proceedings without obvious unfairness, having regard to the process as a whole and all the circumstances…”
“Tell us briefly about the case, how complex it is (and if you know it, the area of law it relates to). “Why are the issues in the case important for you? “Tell us what you must do to present the case. You may also include information about your education or relevant skills/experience and any relevant disability or capacity issues (attaching a copy of any incapacity certificate where available). “Tell us any extra information you think is relevant.”
“4. Ease of access We will: • publish a guide to claiming compensation on our website. • provide an efficient and simple to use online application system and a telephony helpline service for those who need support. • respect your preferred method of contact, support special communication needs and provide foreign language support, where possible (including information and application forms in Welsh if you ask us).”
“You will need to provide us with the evidence necessary to decide your case. In particular, we may ask you to provide the following evidence: • proof that you meet the residency requirements; • medical evidence that shows you suffered an injury that can be compensated under the Scheme; • evidence to support a claim for loss of earnings or special expenses; We will collect the following information before we ask you to obtain medical evidence: • confirmation from the police that the incident in which you were injured was reported to the police; • confirmation from the police that your behaviour did not contribute to the incident in which your injuries were received; • confirmation from the police that you co-operated with them; • evidence from the police about your criminal record, should you have one” • proof that you meet the residency requirements; • medical evidence that shows you suffered an injury that can be compensated under the Scheme; • evidence to support a claim for loss of earnings or special expenses; • confirmation from the police that the incident in which you were injured was reported to the police; • confirmation from the police that your behaviour did not contribute to the incident in which your injuries were received; • confirmation from the police that you co-operated with them; • evidence from the police about your criminal record, should you have one”
“The applicant must provide us with information we need to progress and decide their application, in particular:… Medical evidence about the injury they are claiming for … Where medical evidence is required to determine whether or not an applicant has the capacity to conduct an application themselves or instruct a representative to do so it is the responsibility of the applicant/representative to obtain such evidence. We will not normally meet any costs associated with this. It is the applicant’s responsibility to provide evidence in a format that we can use. If an applicant provides medical or other evidence in a foreign language you should ask that the applicant provide a translation or suitable alternative evidence. We will not normally meet the costs of translating such evidence. However, if you consider it is necessary to have a translation of the evidence and there are exceptional circumstances why we, rather than the applicant, should meet the cost of obtaining it, you should arrange this.”
“You are required to help us as far as reasonably practicable with your application. This may include providing any documentation which you can reasonably be expected to obtain and attending a medical examination arranged to support the assessment of an injury. Normally you will be required to provide evidence in support of your claim in a format that can be used by us. If you provide us with an application, medical or other evidence in a foreign language we will ask you to provide a translation or suitable alternative evidence. We will not normally meet the costs of translating such evidence. However, if we consider it necessary to have a translation of the evidence and there are exceptional circumstances which mean you are unable to meet the cost of obtaining it, we may arrange this for you.”
“You must apply as soon as it is reasonably practicable for you to do so. If you were an adult at the time of the incident, this should normally not be later than two years after it occurred. We can only extend this time limit where: • due to exceptional circumstances an application could not have been made earlier; and • the evidence provided in support of the application means that it can be determined without further extensive enquiries by a claims officer. …If you wish us to consider your application more than two years from the date of the incident you will need to provide us with evidence that shows why this application could not have been made earlier. You must also be able to provide supporting evidence for your claim that means that the claims officer can make a decision without further extensive enquiries.”
“(i) Exceptional circumstances – Paragraph 89(a) Exceptional circumstances involve something out of the ordinary. They must explain the whole period of the delay, not just the reasons why an application was not made within the two year period. In practice, if an application could have been made at any date earlier than the date on which it was made, it should not be admitted. You must consider all the circumstances of the particular case in deciding whether there are exceptional circumstances which mean the application could not have been made sooner. Some matters you should consider include: Whether the applicant was physically or mentally incapable of making an application. You should take into account what the applicant was able, or unable, to do during the period between the incident and the application being received. (…) The length of the delay. In general the longer the period of delay the stronger you should expect the applicant’s reasons for the delay to be. However, a case for extension can still be made out even after a very lengthy delay. Exceptional circumstances are more likely to exist in cases involving sexual abuse, especially where the applicant was a child at the time of the offence.This is because the silence of the victim, and ongoing psychological and emotional trauma, are well known to be direct consequences of such crimes. These effects continue into adulthood. (ii) Further extensive enquiries – Paragraph 89(b) It is the applicant’s responsibility to explain why their application was not made within the time limit and to provide the evidence necessary to support the application. It is for you to decide if the applicant has provided sufficient information to allow the application to be determined. If you decide the applicant has not provided sufficient information to allow the application to be determined you should reject it unless you are satisfied that any further enquiries necessary to determine the application will not be extensive Although it is ultimately a matter for the claims officer’s judgment whether or not to seek additional information, Mr Collins KC asserted (on instructions) that those routine enquiries which would be carried out on the part of the CICA in respect of an application under the CICS (such as to the police) would not be considered to be ‘extensive’. . The assessment of this will depend upon the particular circumstances of the case and the evidence presented by the applicant. Some factors you should consider include: The number of enquiries that are likely to be needed. How long will it take to make the enquiries? How much will it cost to make the enquiries? How complex are the enquiries likely to be? How much time has passed between the incident and the application? The more time that has passed the less likely it may be that supporting information will be available and the more difficult it may be to obtain the information. (iii) Discretion under Paragraph 89 Where Paragraphs 89(a) and (b) are satisfied you still have discretion which allows you to refuse to extend the time limit. However, once 89(a) and (b) are satisfied, you must have good reasons not to extend the time limit. If there is evidence that the claim would fail under another paragraph of the Scheme then you should refuse to extend the time limit even where paragraphs 89(a) and (b) are satisfied. In this case extending the time limit would be meaningless because the application would fail anyway. The reason for not extending the time limit should be clearly explained to the applicant and a formal decision on the other eligibility issues should be made.”
“I am satisfied that, given the stage of the process at which your client is at, and the steps that are required in order to make an application for criminal injuries compensation, your client will be able to do so effectively and without obvious unfairness. The process for making an application is straightforward in nature and legal advice and assistance is not needed. Details of how a compensation application is made can easily be found online. There are dedicated web pages that set out in a clear and intelligible way (including to non-native English speakers) how the application process works and what the eligibility rules are. Help in making the application is also offered by telephone. The content of the application form itself consists largely of Yes/No questions and questions requiring the provision of basic factual information such as: • date and location of the crime • name of the police force to which the crime was reported • crime reference number • name and address of GP • details of any previous CICA applications • details of any unspent criminal convictions There is no requirement in the application to set out complex points of law or evidence. Supporting medical evidence is not required when making the application and neither are detailed submissions required to be made with the application. The Applicant may provide a brief description of the crime, but this is not a mandatory part of the application. (…) Ultimately, and giving particular weight to (a) the importance of the issues at stake, (b) the complexity of the procedure, law or evidence, (c) the capability of the applicant is making the initial application, I have concluded that the overarching test is not met, in particular in light of the straightforward nature of the application process (including the straightforward nature of information required to be provided in the application) and my assessment that the personal circumstances of your client are not so debilitating that they will be unable to participate in the application process unless legal advice and assistance is provided.”
“(a) the importance of the issues at stake, (b) the complexity of the procedure, law or evidence and (c) the capability of the applicant in making the initial application.”
“…a reference in this Scheme to an incident includes a series of incidents and, in the case of a series of incidents, a reference to the date of the incident means the date of the first incident in the series.”
“If an application is made outside of the 2-year time limit, the applicant is prompted in clear terms to explain, “Tell us the reason why this application could not be sent before now.”
“If the crime happened more than two years ago: Tell us why this application could not be sent before now. If the crime took place in more than one of these countries, you can provide additional details later in the application. Tell us more why there was a delay in reporting the crime to the police. What was the crime that caused your injuries Tell us briefly about the crime (optional) Tell us about each injury you received due to this violent crime. You should give us as much detail as you can about each injury. Briefly say how your injuries have affected your daily life. This helps us understand how the crime has affected you. You can leave this blank, but we may have to ask for more information later. What treatment are you receiving for your physical injuries What mental health treatments have you had? Tell us why you have not applied for or received any other compensation or damages Additional information You can provide any extra information, including additional crime reference numbers, details of additional crimes, locations, dates, and/or offenders here.”
“13.13 Complex PTSD is more likely to occur in the aftermath of multiple and repeated trauma over long periods, which is often the case for victims of modern slavery. It is also more likely to occur if trauma is experienced during childhood. Interviewing people who have experienced trauma … 13.15 Victims of modern slavery should be interviewed in an appropriate way to avoid re-traumatising victims. Interviewers and decision makers must not automatically draw negative assumptions if a victim cannot recount details of their experience when assessing credibility. 13.16 It is not uncommon for traffickers and exploiters to provide stories for victims to tell if approached by the authorities. Errors, omissions and inconsistencies maybe because their initial stories are composed by others and they are acting under instruction. They can also arise due to the impact of trauma, which can, for example, lead to delayed disclosure or difficulty recalling facts. 13.17 Victims may have problems in dealing with direct interviewing, especially in contexts which seem to them to be adversarial.”
“13.31 … Ideally only professional interpreters should be used to interview individuals. People claiming to be friends or supporters should not be used as formal interpreters. The following good practice applies: Where possible victims should be given a choice over the gender of their interpreter. If preferences aren’t accommodated it is more likely that full disclosures will not be made. … If a victim appears distressed in the presence of an interpreter, the session should cease immediately.”
“In the present case, while the CICS is not limited to victims of trafficking, it extends its benefits to them. In the preparation of the scheme specific attention was paid to its application to victims of trafficking and provisions included in order to accommodate them. (See paragraphs 10(c), 13-16 of the CICS.) The United Kingdom, in applying the scheme to victims of trafficking, has chosen to confer a degree of protection to promote their interests. I consider that in doing so it is applying a measure which has a more than tenuous connection with the core value of the protection of victims of trafficking under article 4. The rights voluntarily conferred in this way under the scheme on victims of trafficking fall within the general scope of article 4 and must, therefore, be made available without discrimination.”
“… it is indisputable that a wide interpretation has consistently been given by the court to the term ‘within the ambit’. Thus, according to the constant case law of the court, the application of article 14 not only does not presuppose the violation of one of the substantive Convention rights or a direct interference with the exercise of such a right, but it does not even require that the discriminatory treatment of which complaint is made falls within the four corners of the individual rights guaranteed by the article … … the ‘ambit’ of an article for this purpose [article 14] must be given a significantly wider meaning than the ‘scope’ of the particular rights defined in the article itself …”
“A duty on States to make provision for compensation for victims of trafficking 27. Rantsev v Cyprus and Russia(2010) 51 EHRR 1 is significant in that it was the first occasion on which the ECtHR acknowledged that trafficking falls within the scope of article 4. …The Court then went on to set out general principles in relation to article 4. It emphasised (at paras 284-285) that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. The Court reiterated that article 4 entails a specific positive obligation to penalise and prosecute effectively any act aimed at maintaining a person in a situation contrary to article 4. It observed that the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime 2000 (“the Palermo Protocol”) and ECAT referred to the need for a comprehensive approach to combat trafficking which includes measures to prevent trafficking and to protect victims, in addition to measures to punish traffickers. It considered that it was clear from the provisions of those two instruments that only a combination of measures addressing all three aspects could be effective in the fight against trafficking. The extent of the positive obligations arising under article 4 was required to be considered within this broader context. The judgment in Rantsev does not, however, provide any support for the proposition that states are under an obligation to provide compensation to the victims of trafficking perpetrated by private third parties. 28. Chowdury v Greece (Application No 21884/15,30 March 2017 ) concerned the treatment of Bangladeshi migrants working without work permits on a strawberry farm in Greece. When they asked for their wages, the Greek farmers fired on them, seriously injuring a number of them. The ECtHR (First Section) (at paras 86-89) reiterated that states have positive obligations, in particular to prevent human trafficking and protect the victims thereof and to adopt criminal law provisions which penalise such practices. It identified three strands. First, states are required to adopt a comprehensive approach and to put in place, in addition to the measures aimed at punishing the traffickers, measures to prevent trafficking and to protect the victims. Secondly, in certain circumstances, the state will be under an obligation to take operational measures to protect actual or potential victims of treatment contrary to article 4. Thirdly, article 4 imposes a procedural obligation to investigate potential trafficking situations. On behalf of the appellants Ms Kaufmann draws attention to the following passage in the judgment of the Court at para 126: “Lastly, the Court finds that, even though TA and one of the armed guards were found guilty of grievous bodily harm, the Assize Court only ordered them to pay compensation of EUR 1,500, ie EUR 43 per injured worker … However, article 15 of the Council of Europe’s Anti-Trafficking Convention obliges Contracting States, including Greece, to provide in their domestic law for the right of victims to receive compensation from the perpetrators of the offence, and to take steps to, inter alia, establish a victim compensation fund.”
“It follows from the above that the general framework of positive obligations under article 4 includes: (1) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking; (2) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and (3) a procedural obligation to investigate situations of potential trafficking. In general, the first two aspects of the positive obligations can be denoted as substantive, whereas the third aspect designates the states’ (positive) procedural obligation.”
“158. The Court has consistently held thatArticle 4 of the Convention lays down positive obligations for the Contracting States (see Siliadin v. France, no. 73316/01, § 89, ECHR 2005-VII; Rantsev, cited above, §§ 285-86; and S.M. v. Croatia, cited above, § 306). The general framework of those positive obligations has so far been held to include: (a) the duty to put in place a legislative and administrative framework that prohibits and punishes trafficking; (b) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and (c) a procedural obligation to investigate situations of potential trafficking (see S.M. v. Croatia, cited above, § 306). ... 169. To date, the Court’s case-law relating to after-the-fact responses to trafficking has focused on investigation and punishment. However, although essential for deterrence, such measures cannot wipe away the material harm suffered by the victims of trafficking that has already taken place or practically assist their recovery from their experiences. 170. Indeed, the recent case of V.C.L. and A.N. v. the United Kingdom … highlighted, albeit from a different perspective, the need to protect trafficking victims after the fact. That case concerned the criminal prosecution of trafficking victims; the Court found that such prosecution could be problematic in some situations, on the grounds that it could be detrimental to their recovery, create an obstacle to their reintegration into society, and impede their access to the support and services envisaged by the Anti-Trafficking Convention. An analogous line of reasoning had underpinned … J. and Others v. Austria (no. 58216/12, §§ 110-11,17 January 2017 ) [which was] concerned with whether the applicants had been duly identified and supported as trafficking victims. 171. Similar considerations apply in respect of affording compensation to trafficking victims – particularly in respect of lost earnings. The possibility for them to seek compensation in respect of lost earnings, especially earnings withheld from them by their traffickers, would constitute one means of ensuring restitutio in integrum for those victims by making good the full extent of the harm suffered by them. It would also go a considerable way (by providing them with the financial means to rebuild their lives) towards upholding their dignity, assisting their recovery, and reducing the risks of their falling victim again to traffickers. This cannot therefore be seen as a secondary consideration; it must be considered an essential part of the integrated State response to trafficking required underArticle 4 of the Convention . Moreover, redress for the victim should be the overarching consideration from a human rights perspective. 172. It is true that this is but one aspect of the State response to the issue of trafficking, and that other measures, notably those in the field of criminal and sometimes immigration law, are likewise integral to it. But all those measures are complementary – even from the perspective of the need to deter trafficking, which is often (if not always) carried out for financial gain. Making it possible for victims to recoup lost earnings from their traffickers would go some way towards ensuring that those traffickers are not able to enjoy the fruits of their offences, thus reducing the economic incentives to commit trafficking offences. Indeed, the recent trend in law enforcement more generally has been to target not only the persons of criminals but also the proceeds of their offences, and then to use (at least a portion of) those proceeds to compensate victims. This can also reduce the burden on the public resources sometimes used to support the recovery of trafficking victims. Moreover, it can give victims an additional incentive to come forward and expose trafficking, thereby increasing the odds of holding human traffickers accountable and thus preventing future instances of it. 173. In the light of the above, and of the fact that trafficking in human beings as a global phenomenon has increased significantly in recent years (see Rantsev, cited above, § 278), it can be concluded thatArticle 4 of the Convention , construed in the light of its object and purpose and in a way that renders its safeguards practical and effective, lays down a positive obligation on the part of the Contracting States to enable the victims of trafficking to claim compensation from their traffickers in respect of lost earnings.”
“Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23.”
“the member States’ positive obligations underArticle 4 of the Convention must be construed in the light of the Council of Europe’s Anti-Trafficking Convention and be seen as requiring, in addition to prevention, victim protection and investigation, together with the characterisation as a criminal offence and effective prosecution of any act aimed at maintaining a person in such a situation…”
“The Court observes that the Council of Europe’s Anti-Trafficking Convention calls on the member States to adopt a range of measures to prevent trafficking and to protect the rights of victims. The preventive measures include measures to strengthen coordination at national level between the various anti-trafficking bodies and to discourage the demand, which promotes all forms of exploitation of persons, including border controls to detect trafficking. Protection measures include facilitating the identification of victims by qualified persons and assisting victims in their physical, psychological and social recovery.”
“However, Article 15 of the Council of Europe’s Anti-Trafficking Convention obliges Contracting States, including Greece, to provide in their domestic law for the right of victims to receive compensation from the perpetrators of the offence, and to take steps to, inter alia, establish a victim compensation fund.”
“The effect of the provisions for the cap may be that the mother goes to work and escapes it; if so, her children below school age have to be cared for in some other way. Or the effect may be that the cap is imposed, with a variety of possible results: that, as expressly suggested by the government to be an option, the family, no doubt with great difficulty, has to move to cheaper accommodation; or that the mother builds up rent arrears and so risks eviction or otherwise falls into debt; or that, like one of the DA mothers, she has to cease buying meat for the children; or, as in cases recorded by Shelter, that she has to go without food herself in order to feed the children or has to turn off the heating. Whatever their individual effect, provisions for a reduction of benefits to well below the poverty line will strike at family life.”
“82… Where the consequences of a state action would include the separation of families (see the Gudanaviciene deportation cases, the family reunion case and the trafficking case) or interference with the private life rights built up over long periods of lawful residence (see the Balijigari cases) article 8 is very likely to be engaged. Equally if the state grants time-limited rights to remain when it ought to grant longer-term rights and the consequences on a given individual are “significant” article 8 will be engaged (see XY). Once article 8 is engaged, the target of the state act (the person to be deported, the mother who wanted to be reunited with her husband and child, the victim of trafficking or the person who is granted inferior rights and suffers as a result) is entitled to meaningfully participate in the decision making process. 83 I do not accept, and in my view the authorities do not support, Mr Buttler KC’s submission that any consequence which has an impact on the day-to-day life of an applicant is sufficient to engage article 8. The cases deal with interference that goes to the very essence of article 8 rights. 84 In my judgment article 8 is not engaged on the facts of the present case. The grant or refusal of WCS compensation does not in my judgment engage article 8. It is no coincidence that all of the cited cases are concerned with immigration rights. Article 8 has been a particular focus in those cases because article 6 has no application and because it is common for immigration decisions to interfere with established rights recognised under article 8. Balijigari is a clear example. XY is an example of a decision having a “significant moral and financial impact” on the applicant. I do not accept Mr Buttler KC’s attempts to classify XY as a case where the impacts were minimal. 85 In the claimant’s case the grant or refusal of compensation would not in my judgment have a sufficiently significant impact on the essence of her private and family life to engage article 8. The outcome of her claim does not dictate if the claimant would continue to enjoy a family life or a private life. I accept that her life would be made materially better by a significant award, but in my judgment that is not enough.”