R (O'Brien and Others) v Independent Assesor
| Jurisdiction | UK Non-devolved |
| Judge | LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD RODGER OF EARLSFERRY,LORD SCOTT OF FOSCOTE,LORD BINGHAM OF CORNHILL |
| Judgment Date | 14 March 2007 |
| Neutral Citation | [2007] UKHL 10 |
| Court | House of Lords |
| Date | 14 March 2007 |
and others (FC)
[2007] UKHL 10
Appellate Committee
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Carswell
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
Philip Engelman
(Instructed by Hodge Jones & Allen)
Respondents:
Ian Burnett QC
Robin Tam QC
(Instructed by Treasury Solicitor)
My Lords,
This appeal by Mr Vincent Hickey and Mr Michael Hickey raises two questions of law relating to the assessment of compensation payable to them by the Secretary of State for the Home Department under section 133 of the Criminal Justice Act 1988 as amended. This section provides for payment of compensation to those who (like the appellants) have suffered punishment following a conviction which involved a miscarriage of justice. When, as here, the Secretary of State has determined that victims have a right to compensation under the section, an independent assessor (in the appellants' case, Lord Brennan QC) assesses the amount of the compensation payable, which must cover heads of loss not susceptible to precise arithmetical calculation (loss of liberty, loss of family and social life, injury to reputation, emotional suffering and anguish, mental illness caused by the experience of imprisonment and such like) and also heads of loss susceptible to such calculation (loss of past and future earnings, loss of pension rights, relatives' visiting expenses, expenses incurred in securing release, legal expenses and so on). The former heads are conveniently referred to as non-pecuniary loss, roughly equivalent to general damages recoverable on proof of an actionable civil wrong, the latter as pecuniary loss, roughly equivalent to special damages.
In calculating the pecuniary loss suffered by each of the appellants, the assessor considered what sums the appellants would have earned if they had been at liberty but which they had been unable to earn because they were in prison. No issue arises on that calculation. But the assessor further considered that to award the appellants the whole of that sum would over-compensate them because, had they been at liberty, they would inevitably have incurred personal living expenses to provide the necessities of life which, because they were in prison (although wrongly and of course involuntarily), they had not incurred. So he deducted 25% from the appellants' lost earnings as calculated to achieve the figure of what, in his judgment, the appellants had actually lost, the balance which would have been left to them after feeding, clothing and accommodating themselves if in fact they had earned the sums which it was calculated they would have earned if at liberty. No issue arises on the percentage which the assessor used, but the appellants challenge the principle of making any deduction at all. The Queen's Bench Administrative Court (Maurice Kay J) found in their favour on this issue but the Court of Appeal (Auld and Longmore LJJ and Gage J) upheld the assessor's decision [2003] EWHC 855 (Admin); [2004] EWCA Civ 1035. The appellants contend that no deduction should have been made. This contention raises the first issue for decision by the House.
The second question pertains to the assessor's calculation of the appellants' non-pecuniary loss (other than that relating to psychiatric illness). In making percentage deductions to take account of the appellants' other convictions and any punishment resulting from them, the assessor applied percentages (25% in the case of Vincent Hickey, 20% in the case of Michael). This was a departure from the percentage (10%) previously applied by a different assessor (the late Sir David Calcutt QC) in assessing the compensation payable to Mr James Robinson, an alleged participant in the same crime and a victim of the same miscarriage of justice as the appellants but a man with a much worse criminal record. Counsel for the appellants does not criticise the making of a percentage deduction to take account of the appellants' other convictions and punishment resulting from them, nor does he contend that Lord Brennan was obliged to follow the precedent set by his predecessor by deducting the same or a similar percentage. His argument, founded on the principle that like cases ought ordinarily to be treated alike in the absence of good reasons for differentiation, is that if the assessor chose to depart significantly from the percentage applied by his predecessor, he should have given reasons to show that there was justification for doing so. This, it is said, he did not. The Divisional Court and the Court of Appeal did not accept the appellants' consistency argument, then somewhat differently put. Its correctness raises the second issue now before the House.
The facts
On 9 November 1979 the appellants and Mr Robinson, a co-defendant, were convicted at Stafford Crown Court of murdering Carl Bridgewater, a 13 year old newspaper-boy, during a burglary at Yew Tree Farm in the West Midlands.
Vincent Hickey was born in 1954 and was aged 25 on conviction. He had been convicted of some 17 offences, mostly minor, between 1970 and 1978. He had served one short custodial sentence as a juvenile and had been sentenced to 12 months' imprisonment suspended for 2 years. Michael (his cousin) was younger, born in 1961 and aged just under 18 on conviction. He had committed 15 offences, mostly minor, between 1976 and 1978. He had not served a custodial sentence. James Robinson was older than either of the appellants, aged 45 on conviction, and had a much worse criminal record than they did.
For the murder of Carl Bridgewater, Vincent Hickey was sentenced to life imprisonment. He was also sentenced to concurrent terms of 10 years' for aggravated burglary at Yew Tree Farm and 12 months' for an offence of deception. Michael, because of his age, was sentenced to detention during Her Majesty's Pleasure for the murder and 8 years' detention for the aggravated burglary at Yew Tree Farm. He was also sentenced to 12 years' detention concurrently for each of two armed robberies, at Chapel Hill Farm and a Tesco supermarket, to which he had earlier pleaded guilty. James Robinson was sentenced to life imprisonment and 10 years' imprisonment for the murder and aggravated burglary at Yew Tree Farm. He was also sentenced to 15 years' imprisonment concurrently for each of the Chapel Hill Farm and Tesco armed robberies, and a short suspended sentence was activated. The Chapel Hill Farm armed robbery was also charged against Vincent Hickey. He was never tried for or convicted of that crime, but it was later accepted that he had been complicit in it.
The appellants and Mr Robinson tried to challenge their convictions of the Yew Tree Farm offences, of which they always claimed to be innocent, but leave to appeal was refused in December 1981 and, on reference of their cases to the Court of Appeal by the Secretary of State under section 17(1)(a) of the Criminal Appeal Act 1968, their appeals were dismissed in March 1989. Following a further reference to the court by the Secretary of State, serious irregularities in the conduct of the investigation and trial came to light, and the prosecution accepted that the trial of the appellants and Mr Robinson had been fundamentally flawed. They were released on unconditional bail in February 1997 and their appeals were allowed, and their convictions quashed, on 30 July 1997. The Secretary of State very promptly decided that the appellants had a right to compensation.
This was a grave miscarriage of justice. Making allowance for the term of imprisonment which Vincent Hickey would in any event have served for the Chapel Hill Farm armed robbery, the assessor calculated that he had been wrongfully detained for 13 years and just over 8 months for the Yew Tree Farm offences. Making similar allowance for the period Michael Hickey would in any event have been detained for the Chapel Hill Farm and Tesco armed robberies, and also of his standing as a young offender, the assessor treated 12 years, 10 months and 4 days as the period for which he had been wrongfully detained for the Yew Tree Farm offences.
Compensation for miscarriages of justice
The background to the current statutory scheme is described in In re McFarland [2004] UKHL 17, [2004] 1 WLR 1289, paras 8-9, 22, and R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1, paras 5-6, 25-29, and it is unnecessary to repeat that summary. The right to compensation is contained in section 133 of the Criminal Justice Act 1988 which provides, so far as relevant:
"133.—(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
(2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.
(3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
(4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State."
The Criminal Appeal Act 1995, by section 28, inserted a new subsection to...
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