R (Hall and Another) v Independent Assessor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Mrs Justice Swift |
| Judgment Date | 13 November 2008 |
| Neutral Citation | [2008] EWHC 2758 (Admin) |
| Docket Number | Case No: CO/10933/2007 & CO/9798/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2008 |
[2008] EWHC 2758 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Lord Justice Latham
Mrs Justice Swift
Case No: CO/10933/2007 & CO/9798/2006
Heather Williams QC (instructed by Matthew Gold & Co) for Stephen Miller & Darren Hall
Robin Tam QC (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 15th October 2008
These two claimants have both been wrongly convicted and claimed compensation after their convictions had been quashed. The claimant Darren Hall was convicted at Cardiff Crown Court on the 20 th July 1988 of murder and robbery and sentenced to custody for life. Ultimately, on a reference by the Criminal Cases Review Commission, the convictions were quashed on the 25 th January 2000. He was in custody from the time of his arrest on the 10 th November 1987 until the 23 rd December 1998 when he was released on bail pending his appeal, a total of 11 years and 1 month in prison. On the 23 rd August 2006, the defendant determined that he should receive a total of £195,000 for his non-pecuniary loss. He was also awarded a sum for his pecuniary loss, which forms no part of this application. The claimant Stephen Miller was convicted in 20 th November 1990 of murder and sentenced to life imprisonment. His conviction was quashed on appeal on the 10 th December 1992. He had been in custody for a total of 4 years and 1 month when ultimately released. On the 7 th September 2007 the defendant made an award which included the sum of £55,000 for loss of liberty, which is the only aspect of the award with which we are concerned.
The claimant Hall made his application for compensation under section 133 of the Criminal Justice Act 1988. This provides for compensation, in accordance with the International Covenant on Civil and Political Rights, to be paid where a conviction has been reversed, or the claimant has been pardoned, on the ground that a newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. This entitlement only arises, for present purposes, when the conviction was quashed on an appeal out of time or on a reference by the Criminal Cases Review Commission. The claimant Miller made his claim under the discretionary scheme which the Secretary of State for the Home Department then operated in tandem with the statutory scheme, whereby compensation is payable for a period in custody following wrongful conviction or charge where that resulted from serious default on the part of a member of the police force or some other public authority or where there were other exceptional circumstances which justified compensation. A helpful summary of the history and content of the two schemes was given by Laws LJ in R (Bhatt Murphy and Others) v Independent Assessor [2008] EWCA Civ 755 paragraphs 4–8. It is not necessary for the purposes of this judgment to repeat that history. It is sufficient to note that the claimant Miller claimed under the discretionary scheme because his conviction was quashed on an appeal which had been brought in time, and therefore did not fall within the statutory scheme.
Both schemes envisage that compensation will be assessed by the Independent Assessor for the time being. For the statutory scheme provision is made for such assessment in section 133 (4) of the 1988 Act, and is governed by the provisions of schedule 12 to the Act. Compensation under the discretionary scheme has been assessed in practice in the same way. Under the Act there have only been two assessors, Sir David Calcutt Q.C. and Lord Brennan Q.C., the present defendant. The only guidance given in the 1988 Act as to the assessment of compensation is contained in section 133 (4A) which provides:
“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”
That is all the guidance given by the 1988 Act. However, the Secretary of State has consistently informed successful applicants for compensation, whether under the statutory scheme or the discretionary scheme, that in reaching his assessment, “the Assessor will apply principles analogous to those governing the assessment of damages for civil wrongs”. The effect of the use of this phrase in the material provided to applicants was considered by this court and the Court of Appeal in R (on the application of O'Brien and Others) v Independent Assessor: the judgment of Maurice Kay J in this court is reported at [2003] EWHC 855 (Admin); the judgments in the Court of Appeal are reported at [2004] EWCA Civ 1035 [2004] All ER (D) 531 (Jul). At this stage in the judgment it is only necessary to say that the decision of the Court of Appeal concluded that the phrase meant that, as the head note to the All England Reports states:
“(1) The Independent Assessor should, save where the circumstances of the case before him rendered it unjust or otherwise inappropriate, apply principles for the assessment of damages for loss at common law whenever such principles were clear and capable of application by analogy. In relation to non-pecuniary heads of loss, that would usually involve consideration of principles of the assessment of damages for malicious prosecution and/or false imprisonment. Where the facts and/or the law did not permit such analogy, the Independent Assessor should say so and why. He should also strive, in the absence of such guidance, to explain to the claimant how he had reached his award, giving as much information as to its make up as the nature of the claim and facts permitted.
(2) There were some broad objectives that an Independent Assessor should keep in mind when fashioning the make up of any assessment (i) to explain as well as circumstances permitted how he had reached his overall award, including, where practicable, its make up as between different elements; (ii) to provide a useful reference on such matters for himself and his successors to encourage and assist him and them in a consistent approach to the award of compensation; (iii) the need to identify separate sums in the award for loss of liberty and for other significant and self contained aggravating features, to be identified and assessed individually or, at least, in the aggregate; and (iv) to look to the civil law in each case to see whether there was an analogous and clear principle that might assist in the assessment.”
There is no complaint in the present case that the defendant has failed adequately to describe and set out the heads of non-pecuniary loss which make up the overall award. But both claimants assert that the amount that the defendant awarded for loss of liberty wholly failed to meet the requirement that it should be proportionate to, or in line with, awards made in cases of false imprisonment or malicious prosecution which are capable of being relevant analogies, that he failed accordingly to apply the right principles, and that he awarded sums under this heading which were unreasonably and irrationally low. The claimant Hall in addition complains about the element in the overall award for non-pecuniary loss, which is the sum of £10,000 for what the defendant described as the claimant's sense of injustice and the distress of the prosecution process.
In both awards, the defendant discusses how he should approach the problem of assessment of compensation in these cases in identical terms. It seems to me that in order to evaluate the claimant's arguments and in fairness to the defendant it is necessary to set out the relevant paragraphs in full.
“6. The Court of Appeal in the judicial review case involving the applicants O'Brien and Hickeys set out guidance for assessments under the scheme to include reasons; where appropriate consideration of any analogy with common law torts; where appropriate breakdown of the award, and separate consideration of aggravating factors by analogy with aggravated damages.
The Court of Appeal described the assessment of damages as highly fact sensitive, imprecise and artificial. “It is a barely respectable intellectual exercise”– see paras 37/38.
7. I bear in mind that adequate reasons should be given to show what has gone into an award. The reasons should show what weight has, and what has not, been given to any particular factor. I therefore identify the matters which go to make up the award for non-pecuniary loss. In doing so it falls to me to review the overall amount as to whether it provides proper compensation and also to avoid any overlap between different particular factors. I have taken into account the principal authorities of Thompson, ex parte Evans, and note in passing the recent Court of Appeal decision in Richardson v Howie (2004) EWCA Civ. 1127.
I have particular regard to paragraphs 78, 81 and 82 of the judgment of Auld LJ in Hickey and O'Brien and the artificiality of too watertight a distinction between “loss of liberty simpliciter and aggravating features”. “Whether and where to make that distinction will depend on the circumstances of each case. Where aggravating features are significant and reasonably self contained, it may make sense to break them...
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