R (O'Brien and Others) v Independent Assesor
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maurice Kay,MR JUSTICE MAURICE KAY |
| Judgment Date | 16 April 2003 |
| Neutral Citation | [2003] EWHC 855 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 April 2003 |
| Docket Number | Case No: CO/34232003 CO/3821/2002 |
[2003] EWHC 855 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Maurice Kay
Case No: CO/34232003
CO/3820/2002
CO/3821/2002
Ms Heather Williams (instructed by Hickman Rose) for the Claimant (1)
Mr Philip Engelman (instructed by Hodge, Jones and Allen) for the Claimants (2) and (3)
Mr Robin Tam (instructed by Treasury Solicitor) for the Defendant
At Stafford Crown Court on 9 November 1979 four men were convicted of the murder of Carl Bridgewater. They included Michael Hickey, who was then aged seventeen, and Vincent Hickey who was aged 25. Michael Hickey was sentenced to detention during Her Majesty's pleasure, with a concurrent sentence of eight years' detention for aggravated burglary. At the same time he was also sentenced to concurrent sentences of twelve years' detention for two unconnected armed robberies. Vincent Hickey was sentenced to life imprisonment for the murder, with a recommendation that he serve a minimum of twenty five years, and to 10 years concurrent for the aggravated burglary. He was also sentenced, concurrently, to 12 months imprisonment for an unconnected offence of deception. Both men remained in custody until they were released on bail in February 1997. Earlier appeals, had been unsuccessful but on 30 July 1997 the Court of Appeal Criminal Division quashed the convictions for murder and aggravated burglary. The equivalent convictions of their co-accused, Patrick Molloy (who had died in prison) and James Robinson, were quashed on the same occasion.
Michael O'Brien, together with two co-accused, was convicted at Cardiff Crown Court on 20 July 1988 of the robbery and murder of Philip Saunders. He was sentenced to life imprisonment and he remained in custody until he was released on bail on 23 December 1998. On 25 January 2000 his conviction, and those of his co-accused, were quashed by the Court of Appeal Criminal Division.
Following the quashing of their convictions, Michael Hickey, Vincent Hickey and Michael O'Brien made applications to the Secretary of State for compensation. They claimed under section 133 of the Criminal Justice Act 1988 which is headed "Compensation for miscarriages of justice". In its amended form, section 133 provides:
"(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.
(4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to –
(a) the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;
(b) the conduct of the investigation and prosecution of the offence; and
(c) any other convictions of the person and any punishment resulting from them."
In each of the cases of the Hickeys and O'Brien, the Secretary of State determined that the applicant had a right to compensation under section 133. It is the practice of the Secretary of State to appoint an independent assessor who is experienced in the assessment of damages. Until July 2001, the assessor was Sir David Calcutt QC. He was then succeeded by Lord Brennan QC. The assessments in relation to the Hickeys and O'Brien were carried out by Lord Brennan.
The assessments
The assessment of the award to Michael Hickey resulted in the following:
(1) non-pecuniary loss
—for all factors other than psychiatric illness: £140,000
—uplift for aggravating features 35,000
—psychiatric illness 75,000
______
£250,000
From this sum, a 20% deduction was made because of his criminal record. Lord Brennan thereby reduced the award to £220,000, but that appears to be an arithmetical miscalculation which he should be invited to correct.
(2) pecuniary loss
—mother's travelling expenses 15,000
—campaign costs 35,000
—counselling expenses 75
—past loss of earnings 301,095
—past care 18,618
—past Court of Protection costs 762.50
—future loss of earnings 209,357
—future loss of pension 13,993
—future care 138,719
—future psychiatric treatment 5,000
—future Court of Protection costs 26,391
With the addition of an award of interest in respect of past pecuniary loss, this produced a pecuniary loss total of £770,000 which, when aggregated with the pecuniary loss of £220,000, gave a grand total of £990,000, in respect of which interim payments of £170,000 had previously been made
The assessment of the award to Vincent Hickey was as follows:
(1) non-pecuniary loss 90,000
- of this figure, £50,000 represented past and
present psychiatric injury
- interest 3,248
,248
From this sum, a 25% deduction was made because of his
criminal record, thereby reducing it to £ 144,936
(2) Pecuniary loss
—past pecuniary losses (net) 242,481
—future loss of earnings 99,691.20
—future loss of pension 14,112
—future medical costs 5,000
,284.20
Thus, the total award was £506,220.20, in respect of which interim payments of £285,000 had previously been made.
The assessment of the award to Michael O'Brien was as follows:
(1) non—pecuniary loss 200,000
- of this figure, £125,000 represented "the consequences
of imprisonment" and £20,000 was in respect of "the
of conduct of the investigation". The balance of £55,000
related to psychiatric illness
—interest on the personal injury element: 2475
,475
(2) pecuniary loss
—past loss of earnings, including interest 186,809
—future loss of earnings 197,130
—SERPS loss 12,000
—past care 12,500
—other past and future losses 36,986
,425
These figures therefore resulted in a grand total of £647,900, of which £200,000 had previously been paid on an interim basis. It is to be noted that in O'Brien's case there was no deduction under section 133(4A)(c) because he had no other convictions.
The applications for judicial review
The three Claimants each made applications for permission to apply for judicial review. In each case, Lord Brennan produced an Addendum to his original assessment after the commencement of proceedings. It is in the form of a response to representations made by solicitors and/or the matters set out in the claim forms. O'Brien was granted permission to apply on 7 October 2002. The Hickeys were initially refused permission but it was granted to them both at a renewal hearing on 22 November 2002. Arrangements were made for the three substantive applications to be heard together.
The grounds of challenge overlap in relation to the three applications. Some relate to specific elements in the awards and take issue with the quantification or exclusion of particular items. In some cases the points are not common to all three cases. I propose to consider these more specific points later in this judgment. The first grounds of challenge which I shall address are of a more general nature and raise important matters of principle.
Ground 1: the legal parameters of an assessment
This heading is my shorthand which is intended to embrace a number of submissions on matters of general principle which were advanced on behalf of all three Claimants. To an extent, they impact upon some of the later grounds of challenge.
Quite clearly, section 133 provides for a statutory compensation scheme in which the Secretary of State decides whether an applicant has a right to compensation (section 133(3)). If that issue is resolved in favour of the applicant, the independent assessor determines the amount of such compensation (section 133(4)). The only provisions in section 133 which prescribe the approach of the assessor are the description of the compensation in section 133(1) as "compensation for the miscarriage of justice to the person who has suffered punishment" and the requirement in section 133(4A) that the assessor shall have regard to the three matters there listed.
The Secretary of State has issued a document under the title Compensation for Miscarriages of Justice: Note for Successful Applicants, ("the Note"). It is dated June 1997. It is common ground than an applicant whose right to compensation has been established has a legitimate expectation that the assessment of his compensation will be in accordance with that document. The preamble to the document states:
"The payment is made in recognition of the hardship caused by a wrongful charge or conviction and notwithstanding that the circumstances may give no grounds for a claim of civil damages."
Paragraph 2 describes the independent assessor as a person...
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