R (Hall and Another) v Independent Assessor

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir Paul Kennedy,Lord Justice Lloyd,Lord Justice Mummery
Judgment Date19 Jun 2009
Neutral Citation[2009] EWCA Civ 609
Docket NumberCase No: C1/2008/2923

[2009] EWCA Civ 609

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ADMINISTRATIVE COURT

LORD JUSTICE LATHAM & MRS JUSTICE SWIFT

CO/1933/2007-[2008]EWHC 2758 (ADMIN)

Before:

Lord Justice Mummery

Lord Justice Lloyd and

Sir Paul Kennedy

Case No: C1/2008/2923

Between:
R (on the Application of Stephen Miller)
Appellant
and
The Independent Assessor
Respondent

HEATHER WILLIAMS QC (instructed by Mathew Gold & Co) for the Appellant

ROBIN TAM QC (instructed by The Treasury Solicitor) for the Respondent

Hearing date : 8 th May 2009

Sir Paul Kennedy

Sir Paul Kennedy:

1
1

This is a claimant's appeal from a decision of the Divisional Court which, on 11 November 2008, dismissed applications by the claimant and Darren Hall, for judicial review of the separate assessments made in respect of each of them by the Respondent. Darren Hall has not appealed.

2

The Appellant suffered a miscarriage of justice. In November 1990 at Swansea Crown Court, when aged 24, he was convicted of murder and sentenced to life imprisonment. The conviction came at the end of a second trial, the first trial having been terminated at a late stage by the death of the trial judge. The crime of which the Appellant and others were convicted was particularly brutal, and attracted a lot of publicity, especially in South Wales. He appealed against conviction, and on 16 December 1992 his conviction was quashed, with serious criticisms from the court of the oppressive way in which he had been questioned by the police. The Appellant was then released, having been in custody for four years and one month. Another man was later convicted of the murder, and it is now accepted that he acted alone.

3

On 11 January 1993 solicitors acting on behalf of the Appellant applied to the Home Secretary for an ex gratia payment of compensation. In March 1993 the solicitors were informed of the Home Secretary's decision that such a payment should be made. Over the next few years some interim payments were made, but the matter did not progress as it should have done, so that it was November 2007 before a final assessment could be made. This appeal is concerned with one part of that assessment, namely the adequacy of the award of £55,000 for the Appellant's “loss of liberty and the consequences of imprisonment which usually arise in any sentence of imprisonment”. I deliberately use the Assessor's words describing that part of his award. Particular factors of special weight were the subject of separate and additional awards totalling £65,000, which formed the other part of the overall basic award of £120,000. There were then awards for aggravating features (£35,000), for psychiatric damage, and for pecuniary loss, but we are not concerned with the awards made under those heads.

2

The Legal Framework

4

In Bhatt Murphy v The Independent Assessor [2008] EWCA Civ 755 Laws LJ helpfully explained how compensation claims for miscarriages of justice have been handled in recent years. Since 1957 the Home Secretary has dealt with such claims in accordance with the advice of an Independent Assessor. In 1976 the United Kingdom ratified the International Covenant on Civil and Political Rights, Article 14 (6) of which contained an obligation to compensate those whose convictions are subsequently set aside “on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice”, save where non-disclosure of the fresh evidence is wholly or partly attributable to the claimant. Initially the UK purported to meet the obligation imposed by Article 14 (6) by means of the existing arrangements for ex gratia payments, but eventually that obligation was discharged by the enactment of section 133 of the Criminal Justice Act 1988. It deals only with cases in which there is ' new or newly – discovered fact ' and the present case is not such a case, but it is right to have in mind the provisions of section 133 because it is common ground that once the Act came into force statutory and ex gratia claims were handled in the same way. In particular under section 133 –

“(3) The question of 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”.

5

The Statute did not originally give any guidance as to how the assessor should assess the compensation, but with effect from 1 January 1996 it was amended to include section 133(4A) which reads –

“in assessing so much of any compensation payable under the 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.”

6

In 1985, in a written Parliamentary answer, the Home Secretary said that the Independent Assessor “applies principles analogous to those on which claims for damages arising from civil wrongs are settled”, and the Home Secretary bound himself to accept any recommendation as to amount made by the Assessor.

7

In June 1997 the Home Office published a Note to assist successful applicants, that is to say those to whom the Secretary of State accepted that compensation should be paid. A revised version of that Note was issued by the Office for Criminal Justice Reform in April 2006. In paragraph 1 the 2006 Note states that –

“The payment is made in recognition of the hardship caused by a conviction that is subsequently quashed and notwithstanding that the circumstances may give no grounds for a claim of civil damages.”

8

That is said by reference to section 133, because the Secretary of State decided in April 2006 to end the discretionary scheme save in relation to applications already received, of which this application was one. Much of the early part of the Note is concerned with how the written material is gathered together and presented to the Independent Assessor, then, at paragraph 8, under the heading “Principles Applied” the Note says again that the Assessor will apply principles analogous to those governing the assessment of damages for civil wrongs. It states that the assessment will take into account both non-pecuniary and pecuniary loss arising from the wrongful conviction. Paragraph 9 states –

“In considering the circumstances leading to the quashed conviction the Assessor will also have regard, where appropriate, to the extent to which the situation might be attributable to any action, or failure to act, by the police or any other public authority, or might have been contributed to by your own conduct. Although the amount awarded will take account of this factor, it will not include any element analogous to exemplary or punitive damages, and will only include an element analogous to aggravated damages to the extent that such damages (if appropriate) are compensatory rather than punitive.”

9

The Note then incorporates section 133 (4A) of the 1988 Act (set out above) and continues –

Non-Pecuniary loss.

Damage to character or reputation; hardship, including mental suffering, injury to feelings, and inconvenience

* The Assessor may deduct an amount in respect of any previous or any subsequent convictions.

* The Assessor may also deduct an amount to take into account any conduct by you which can be construed as contributing to the miscarriage of justice.”

10

The Note then deals with personal pecuniary loss, saved living expenses, legal costs, and so forth. It makes it clear that the amount of the award is solely a matter for the Independent Assessor, and states in paragraph 16 that –

“The final award will be paid only upon receipt of written notification that you accept it in full and final settlement of your application.”

11

There are other provisions as to confidentiality, with which I need not be concerned, and it is worth noting that there is no provision for any form of appeal.

12

Thus far it will be clear that very little has been said in the Statute, or in the published material about how the Independent Assessor is to reach his conclusions as to the amount to award, but that process has received some consideration by the courts, which have also considered the similar question of how juries and others should reach awards in civil actions, and what, if any, guidance they can be given. It is the case for the Appellant that the Respondent should have regarded some of the guidance as relevant, as well as some of the judicial awards made in respect of torts such as false imprisonment, so I turn now to the authorities which we have been asked to consider. They fall into three categories, first those concerned with the increasingly accepted need to give guidance to decision-makers in fields where traditionally there has been no guidance of any kind, so as to render awards more predictable, more consistent and more transparent. Secondly our attention has been drawn to some awards in cases of wrongful arrest and false imprisonment which, it is said on behalf of the Appellant, the Respondent should have used to assist him to reach an appropriate award in the present case. Finally we have been asked to look at the decision of the Administrative Court and of this court in ...

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