40 years of injustice overcome in a landmark Court of Appeal victory by Fenella Morris QC and Nicola Kohn: same roof rule overturned

News Fenella Morris KC, Nicola Kohn 24th July 2018

In a unanimous judgment delivered by Lord Justice Leggatt, the Court of Appeal has declared that the “same roof rule” is incompatible with article 14 of the European Convention on Human Rights.

The “same roof rule” has been something of a cause célèbre for 4 decades: a provision whereby those who suffered criminal injury at the hands of a member of their family with whom they lived at the material time were excluded from compensation. The exclusion has been challenged numerous times in the courts, most recently in the Court of Session (Inner House) in Scotland (A v CICB [2017] CSIH 46, 2017 S.L.T. 984) and in the High Court in Northern Ireland (F’s Application for Judicial Review [2018] NIQB 7). For the first time, a challenge against this unfair and discriminatory exclusion has succeeded.

In a fully reasoned judgment, before a court made up of Sir Terence Etherton MR and Lady Justice Sharp DBE, the Court of Appeal confirmed that the right to a criminal injuries compensation award could constitute a “possession” within the meaning of article 1 protocol 1 ECHR. It further held that the Appellant, JT, had “other status” within the meaning of article 14 by virtue of having lived together as a member of the same family as her assailant. Furthermore, in contrast to the Court of Session, it held that an exclusion from a criminal injury award by virtue of this status was discrimination which is “manifestly without reasonable foundation” and thus a violation of article 14.

JT has spent 40 years struggling with the effects of the crimes committed against her and 6 years fighting for compensation. She originally brought her case to the students of Teesside Law Clinic, who in turn instructed Nicola Kohn pro bono to fight her case. The case continued pro bono until permission to appeal was secured, when legal aid was subsequently granted.

To view the full judgment, please click here.

Related Barristers

Fenella Morris KC

Nicola Kohn