Judge orders rethink of blanket exclusion

Critics of the rule pointed out it disproportionately affected victims of child sex abuse and, in 2018, the Independent Inquiry into Child Sex Abuse (IICSA) recommended the rule be changed. In response, the government set out its Victims Strategy, which included consulting on the IICSA recommendations.

The Ministry of Justice, however, later refused to consult and said an internal review had been conducted and the rule would not be changed.

Kim Mitchell, a survivor of a sexual assault by a school teacher when she was eight years old, brought a judicial review. She was refused compensation for the harm she suffered because of a minor Public Order Act offence she committed nearly 30 years later.

She argued she had a ‘legitimate expectation, based on clear and unambiguous representations’ made in the Victims Strategy that they would consult on the rule.

Ruling in R (oao Mitchell) v Secretary of State for Justice [2021] EWHC 2248 (Admin), Mrs Justice Lang agreed the Justice Secretary’s decision not to consult on the issue was a breach of his promise and ordered he conduct a public consultation.

Lang J said a legal obligation may arise from a legitimate expectation of consultation, and a legitimate expectation may arise from an express promise or representation made by a public body.

Mitchell’s solicitor at the Centre for Women’s Justice, Debaleena Dasgupta, said: ‘Too often the government makes public statements which imply they will address concerns, but then take decisions behind closed doors which don’t.’