We seem to be having something of a summer rush of consultation court cases at the moment. First we had internal consultation responses in Juden, then we examined consultation on local facilities in Danning, over to Low Traffic Neighbourhoods in Sheakh, up to Scotland for a mischaracterised consultation in Graham’s Dairy and then back down to the Court of Appeal and LTNs again in Streetspace. This time, we’re still in the Royal Courts of Justice in London, but a couple of courts down the corridor in the High Court.

The challenge in R (Mitchell) v Secretary of State for Justice was to a Government decision not to consult on a proposed change to the Criminal Injuries Compensation Scheme which would have abolished or altered the rule that prevents people with unspent criminal convictions from receiving compensation for injury caused by previous offences against them. In this case, the claimant had previously been a victim of child sexual abuse which disrupted her childhood, and ultimately many years later committed an offence under the Public Order Act 1986.

Until 2012, the Criminal Injuries Compensation Authority had a discretionary power to give compensation to those with unspent convictions, but in that year this was replaced with a rule to create an absolute bar on compensation being given. Many concerns had subsequently been raised about this ‘exclusionary rule’ including by the Victims Commissioner, Women Against Rape and the APPG on adult survivors of childhood sexual abuse. One of the most significant interventions over the issue came when the Independent Inquiry into Child Sexual Abuse recommended revisions of the rule in their 2018 interim report.

The Government responded to concerns in their Victims Strategy which included a paragraph reading (with emphasis added) “Abolish the rule which denied compensation for some victims who lived with their attacked prior to 1979 and consult on further changes to the Criminal Injuries Compensation Scheme”. This promise was backed by a press release which promised a review of the scheme which stated that the review would cover the exclusionary rule. The terms of reference for the review gave a list of things under consideration, including the exclusionary rule, and stating at the end of the list “The Government will consult publicly on proposals in 2019”. This review was undertaken by a team in the Ministry of Justice, who conducted a literature review, statistical analysis and limited stakeholder engagement.

Once the review was finished, the Government published a consultation paper which gave some background information on the exclusionary rule, summarising the concerns and then stating that changing the scheme would make the scheme more complex and increase decision times, suggesting that any impact caused by the original injury on offences committed would be taken into account in mitigation and sentencing, and concluding that change would not be possible. No explanation was given for why they were not going to consult, and it was not mentioned in any of the questions, although there was a single question inviting “any further comments on the scheme”.

Of the 96 responses to the consultation, 26 raised the exclusionary rule, most calling for changes, with several expressing disappointment that it was not being consulted upon. The Government claimed that these representations had been considered, and the lead official working on the issue retrospectively said in her witness statement to the court that she was satisfied that the Cabinet Office principles on consultation had been fulfilled, particularly that consultations should only be done when plans were at a formative stage.

There were functionally two questions before the court. Firstly, was there a legitimate expectation of a consultation on the abolition or alteration of the exclusionary rule and secondly, was the legitimate expectation (if there was one) breached. The principles behind legitimate expectations are well rehearsed. In this case, the claimed legitimate expectation was one derived from an express promise or representation made by a public body. Mrs Justice Lang, after a review of existing case law, applied the usual test first applied by Lord Justice Bingham, that any such claim of legitimate expectation relied on must be founded on a promise that was “clear, unambiguous and devoid of relevant qualification”.

Here, the Court identified two separate representations that were sufficiently “clear, unambiguous and devoid of relevant qualification”. The first occurred twice in the Victims Strategy, in both the executive summary and chapter on “Overarching improvements to victims’ experience”, the aforementioned statement of intent: “Abolish the rule which denied compensation for some victims who lived with their attacked prior to 1979 and consult on further changes to the Criminal Injuries Compensation Scheme”. In addition, the end of that same chapter included in a list of actions to be taken, a bullet point that stated “Consult on further changes to the Criminal Injuries Compensation Scheme.”

In the assessment of the judge, this formulation was sufficiently “clear, unambiguous and devoid of relevant qualification” to constitute a representation founding a legitimate expectation. The question then arose as to whether the generic question and summary of the results of the internal review in the wider consultation paper was sufficient to constitute a lawful constitution, as the defendants argued it would be. For the judge, this was a simple matter and harkened back to the first Gunning principle- consultation must take place ‘at a formative stage’. The surrounding evidence, including the consultation itself, stated that the Ministry of Justice had already decided not to make any changes to the exclusionary rule, and even though some respondents to the consultation had raised it as an issue, this could not make any difference to an issue that was already decided.

The case is a fairly straightforward one, but a good one to look at if you want reassurance that the law is not all mystical arcana. Here, a straightforward reading of the text was more than enough to condemn the Government to failure. It’s one of those cases that you can’t help but wonder why it was defended at all. Two remedies were sought by the claimant here, firstly a declaration that the Government had acted unlawfully, and secondly a mandatory order to require the promised consultation to take place. Although the Government accepted the first, they opposed the second, telling the court that they had already taken account of the reasons and set out their reasons for not revising the rule.

Mrs Justice Lang however rejected this argument, claiming it was an attempt to get round the finding against them. She reminded the Court of the reasons that courts require public authorities to honour their promises and she failed to see any practical reasons that another consultation could not be performed. Though she acknowledged that having made up their mind previously it might be difficult to put that from their minds for the second consultation she stated she had “no doubt” that they would undertake the new exercise “with an open mind, in accordance with the law”. It could be interesting to watch, just in case campaigners claim they don’t…