R (O'Brien and Others) v Independent Assesor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lord Justice Longmore,Mr Justice Gage |
| Judgment Date | 29 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1035 |
| Docket Number | Case No: C3/2003/1732, C3/2003/1733 & C3/2003/1741 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2004 |
: [2004] EWCA Civ 1035
Court and Reference: Court of Appeal, C3/2003/1732, C3/2003/1733 & C3/2003/1741
: Auld and Longmore LJJ and Gage J
Appearances: R Tam (instructed by the Treasury Solicitor) for the Assessor; N Blake QC and H Williams (instructed by Hickman & Rose) for O'B; P Engelman (instructed by Hodge Jones & Allen) for VH and MH
: Whether the Independent Assessor had applied the correct principles when calculating compensation due under s. 133 of the Criminal Justice Act 1988
: In 1974 VH (who was aged 25) and MH (who was aged 17) were convicted of the murder of Carl Bridgewater. MH was sentenced to detention during Her Majesty's pleasure, with a concurrent sentence of 8 years' detention for aggravated burglary. At the same time he was also sentenced to concurrent sentences of 12 years' detention for 2 unconnected armed robberies. VH was sentenced to life imprisonment for the murder, with a recommendation that he serve a minimum of 25 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. On 30 July 1997 the Court of Appeal Criminal Division quashed the convictions for murder and aggravated burglary.
O 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 was quashed by the Court of Appeal Criminal Division.
MH, VH and O made applications to the Secretary of State for compensation under the statutory scheme for compensating miscarriages of justice contained in s. 133 of the Criminal Justice Act 1988. The Secretary of State determined that they each had a right to compensation and referred the assessment of damages to the Independent Assessor.
MH was awarded a total of £990,000. VH was awarded a total of £506,220.20. O was awarded a total of £647,900. Each sought to challenge their awards by way of judicial review, contending that the Independent Assessor had erred in (i) not applying common law principles to the assessment (ii) not breaking down the awards for non-pecuniary loss (iii) adopting an incorrect approach to aggravated compensation (iv) failing to have sufficient regard to damages awarded in libel (v) making a deduction for the living expenses saved during the period of incarceration (vi) in the cases of VH and MH making a deduction for criminality against all forms of non-pecuniary loss and for making a larger deduction than was made in the case of their co-defendant (vii) not making an award for the cost of financial advice (viii) not making an award for the cost of counselling for MH's mother and (ix) adopting an incorrect approach to awarding interest.
At first instance the awards were quashed on the basis that the Independent Assessor (i) should have set out a more detailed breakdown of his award for non-pecuniary loss, other than for physical or psychological injury; (ii) should have set out more explicitly whether, and, if so, what award he had made for aggravating features in the case; and (iii) should not have deducted from the awards for past loss of earnings an amount representing the expenses that each claimant would, if at liberty, have spent from such earnings on the necessities of life.
The Assessor appealed on the issues of the breakdown of the award/aggravated damages and saved living expenses. MH and VH cross appealed on the issues of (i) deductions on account of their criminality, and (ii) inconsistency between awards made by the Independent Assessor and awards made by his predecessor.
1. This is an appeal by the Independent Assessor for England and Wales, Lord Brennan QC, appointed under s. 133 of the Criminal Justice Act 1988, ("the 1998 Act") against the order of Maurice Kay J, as he then was, on 16 April 2003, quashing parts of awards to the Respondents ("the claimants") of compensation to be paid to them from public funds in respect of their sufferings from miscarriages of justice, as provided for by s. 133. There are also cross appeals by the second and third claimants, Michael and Vincent Hickey.
2. The appeals concern the amount and manner of assessment by Lord Brennan of the 3 claims for compensation shortly after he had succeeded Sir David Calcutt QC as the Independent Assessor. On an application by the claimants for judicial review of those awards, the Judge quashed parts of each of them on 3 grounds and upheld parts of them on 2 grounds, all 5 of which are issues in these appeals. As to those parts of the awards that he quashed, the Judge ordered Lord Brennan to re-consider his assessments and, in doing so, to set out his reasoning in accordance with his, the Judge's, judgment. The 3 grounds on which he quashed parts of the awards were that Lord Brennan:
i) should have set out a more detailed breakdown of his award for non-pecuniary loss, other than for physical or psychological injury;
ii) should have set out more explicitly whether, and, if so, what award he had made for aggravating features in the case; and
iii) should not have deducted from the awards for past loss of earnings an amount representing the expenses that each claimant would, if at liberty, have spent from such earnings on the necessities of life.
The 2 grounds on which he upheld parts of the award, which are the remaining issues in the claims of Michael and Vincent Hickey, were:
iv) that deductions on account of their criminality from the awards of compensation could be made from the whole of the non-pecuniary aspect (save for personal injury) of their respective awards, as Lord Brennan had directed; and
v) that there was inconsistency between the non-pecuniary aspect awards made by Lord Brennan to them and that of Sir David Calcutt to James Robinson arising out of the same miscarriage of justice.
The statutory scheme
3. Section 133 of the 1988 Act provides a scheme under which application may be made to the Secretary of State for compensation out of public funds for punishment resulting from a conviction where it has been reversed or there has been a pardon on account of a subsequently discovered miscarriage of justice (s133(1)). If the Secretary of State determines that an applicant has a right to such compensation, he refers the matter to the Independent Assessor, whom he has appointed, to determine its amount (s133(2)-(4)). In assessing the amount of compensation the Independent Assessor marks the hardship caused by a wrongful charge or conviction, whether or not the circumstances provide a ground for a claim of civil damages against the person or persons responsible for the miscarriage of justice. However, in making his assessment, the Assessor is enjoined by the Secretary of State to apply principles "analogous to those governing the assessment of damages for civil wrongs", such assessment taking account of pecuniary and non-pecuniary loss.
4. The scheme, though now statutory, replaces an earlier ex gratia scheme, and sets out exactly the same principles as those in the earlier scheme on which compensation is to be assessed.
5. Section 133 was enacted to give effect to the UK's treaty obligations upon ratification of the International Covenant on Civil and Political Rights ("the ICCP") in 1976, Art 14(6) of which provides:
"When a person has by a final decision 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 conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction, shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him."
6. Section 133(4A) of the 1988 Act, which was inserted by the Criminal Appeal Act 1995, s. 28, provides that:
"[i]n assessing so much of any compensation payable … to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard 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
(c) any other convictions of the person and any punishment resulting from them"
7. Section 133(7) of, and Sched 12 to, the Act specifies who may be appointed as an Independent Assessor for the purpose of s. 133. In the case of England and Wales, it is anyone with a general right of audience in the Supreme Court or in the county courts and magistrates' courts. So far, there has only been one Independent Assessor, at any one time, appointed for England and Wales.
8. That is all the guidance given by the 1988 Act to the Independent Assessor as to the matters to which he should have regard when making his assessment. However, in June 1997 the Secretary of State re-issued guidance in the form of a note ("the Home Office Note") that is sent to successful applicants for compensation informing them in broad terms of the basis on which it will be assessed and of the written form of assessment procedure to be adopted. I say "re-issued" because, since 1957 (that is, preceding the ratification of the ICCP in 1976 and the introduction by the 1995 Act of sub-section (4A)), the key passage in para 5 has been in the same terms, namely that "[i]n reaching his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs". And, as Sir David Calcutt observed in one of his of his last assessments, Mattan, 31 January 2001.
"[5]...
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