England and Wales Court of Appeal (Civil Division) Decisions

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)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/06/2009

Sir Paul Kennedy:

1. Introduction

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 Independent Assessor v O'Brien & others [2003] EWHC 855 (Admin) and [2004] EWCA Civ 1035 to see what assistance we can derive from what was decided in that case.

3. The Guidance Cases

13. In John v MGN [1997] QB 586 the Court of Appeal made substantial reductions in the awards of damages made by a jury in an action for defamation, and indicated that juries should be assisted by reference, not only to awards made or approved by the Court of Appeal, but also to awards made in personal injuries actions as a form of cross-check. At page 614 F-G the court explained how a comparison might be made. Sir Thomas Bingham, M.R. said –

"These awards would not be relied on as any exact guide, and of course there can be no precise correlation between loss of a limb, or of sight, or quadriplegia, and damage to reputation. But if these personal injuries respectively command conventional awards of, at most, about £52,000, £90,000 and £125,000 for pain and suffering and loss of amenities (of course excluding claims based on loss of earnings, the cost of care and other specific financial claims), juries may properly be asked to consider whether the injury to his reputation of which the plaintiff complains should fairly justify any greater compensation."

14. In Scotland v Metropolitan Police 19 January 1996, unreported, the Court of Appeal considered an award of damages for personal injuries made by a jury in an action against the police for assault and false imprisonment. The Appellant contended that the award was too low. The court endorsed what had been said in John about the need for guidance, not only in defamation actions, but also in this type of action, and reminded itself of the limited circumstances in which an appellate court can interfere with the award of a jury.
15. In Thompson & Hsu v Commissioner of Police of the Metropolis [1998] QB 498 this court considered two claims against the police. The female claimant, Thompson, was arrested, man-handled, assaulted and detained for four hours. She was awarded £1500 with exemplary damages of £50,000.
16. The male claimant, Hsu, was arrested, assaulted, abused, injured and detained for 1¼ hours. He was awarded £20,000 and exemplary damages of £200,000.
17. The Court of Appeal re-structured both awards. The awards of exemplary damages were drastically reduced, and in the case of Thompson the basic award was increased to £10,000. The court said again that juries needed to be given guidance, and at 515D Lord Woolf M.R., giving the judgment of the court, suggested some starting points. For wrongful arrest and false imprisonment lasting 24 hours the suggested starting point was £3,000 (which, allowing for inflation would now be nearly £4,100). For malicious prosecution resulting, after about 2 years, in a Crown Court trial the suggested starting point was £10,000. The figure would be greater if the claimant was convicted, and had to appeal. At 517E the court pointed out that its suggested figures would have to be adjusted to allow for inflation.
18. In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318 a female police officer was found to have suffered sexual discrimination, and to be entitled to compensation for injury to her feelings. The range of awards by tribunals under that head had been wide, and at paragraph 47 Mummery L.J. said that –

"Compensation of the magnitude of £125,000 for non- pecuniary damage creates concern as to whether some recent tribunal awards in discrimination cases are in line with general levels of compensation recovered in other cases of non-pecuniary loss, such as general damages for personal injuries, malicious prosecution and defamation. In the interests of justice (social and individual), and of predictability of outcome and consistency of treatment of like cases (an important ingredient of justice), this court should indicate to Employment Tribunals and practitioners general guidance on the proper level of award for injury to feelings and other forms of non-pecuniary damage."

19. At paragraph 53 Mummery L.J. cited with approval from the judgment of Smith J. (as she then was) in Prison Service v Johnson [1997] ICR 275, where she said –

"(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award.

(ii)Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legalisation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R. in John, be seen as the way to "untaxed riches".

(iii)Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards.

(iv)In exercising that discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings.

(v)Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made."

20. The court reduced the compensation, and at paragraph 65 set out three broad bands of suggested levels of compensation, with the figures in each band being related to the seriousness of the discrimination.

4. Awards for "comparable" torts

21. In Lunt v Liverpool City Justices 5 March 1991, unreported, an occupier of domestic premises, aged 57, served 42 days imprisonment for failing to pay rates he should never have been required to pay. He was a man of impeccable reputation, in poor health. His reputation was damaged and he found the whole experience traumatic. For wrongful imprisonment the Master awarded £13,500. This court increased the award to £25,000, which, making allowance for inflation, would now be in excess of £42,000. In R v Governor of Brockhill Prison ex parte Evans (No.2) [1999] QB 1043 there was a misunderstanding as to when the claimant, who had served a two years sentence for robbery, should be released. The misunderstanding was corrected by the decision in another case. As a result Evans served 59 days more than she should have done. For that period of false imprisonment damages, if payable, were assessed at £2,000, and this court raised that award to £5,000, which would now be £6,466. That was a decision with which the House of Lords refused to interfere [2001] 2 AC 19. In Evans, as in other cases, the court refused to lay down any formula, and discouraged an analytical approach, but plainly the emerging pattern of awards did have to be considered to ensure that future awards were proportionate and consistent.
22. In R v Secretary of State for the Home Department ex parte Bouazza [1998] unreported, the Senior Master had to assess the damages which should be paid to an Algerian asylum seeker who was held at a detention centre for 63 days after he should have been released. Having considered Lunt, Thompson and ex parte Evans he awarded £10,000, which would now be £12,860. As the Master pointed out, Bouazza was different from Lunt because Bouazza was originally lawfully detained, but he suffered greatly in detention because he was told that he would be returned to Algeria, which would almost invariably result in torture and death. That was reflected in the quantification of the damages for his psychiatric injuries, but, said the Master, "it also has its place in the quantification of his unlawful detention as each day spent in detention was a further day in which he feared the subsequent removal Algeria."
23. The last authority to which I need to refer at this stage is R (on the application of B) v Secretary of State for the Home Department [2008] EWHC 3189 (Admin) in which Mr Kenneth Parker Q.C., sitting as a Deputy High Court Judge, on the basis of written submissions, awarded £32,000 to a female claimant who was unlawfully detained for 6 months after the end of a period of about 12 days of lawful detention. At paragraph 22 the Deputy Judge said –

"It seems to me that my essential task is to determine a figure that, first, is not out of line with the amounts assessed in Thompson and, taking due account of the very different circumstances, in Evans, appropriately adjusted for inflation; and second, a figure that is not disproportionate to amounts awarded generally for non-pecuniary loss in personal injury litigation."

24. The judgment was handed down on 4 December 2008, and it is not therefore necessary to make allowance for inflation since that date.

5. The O'Brien Decisions

25. In this case the claimants sought judicial review of awards made by the present Respondent. O'Brien had served 11 years and 43 days in custody for murder and robbery, offences which he did not commit. For the consequences of imprisonment the Respondent awarded £125,000 to which he added £20,000 for the short-comings of the investigation, and an additional award for psychiatric illness.
26. In his challenge to the award of £125,000 in the Administrative Court the claimant drew attention to the obligation of the Assessor to "apply principles analogous to those governing the assessment of damages for civil wrongs". For the Respondent it was contended that there are only two general principles, namely that the aim of an award of damages is to put the claimant into the position in which he would have been but for the civil wrong, and, secondly, that money cannot in fact equate to a non-pecuniary loss. It is simply the best that a court can do. Maurice Kay J. (as he then was) found that too abstract. He considered it necessary for the Respondent to look at guidance cases, and awards made in the civil courts and to use the level of awards in personal injury cases as a form of cross-check. Turning to the second ground of challenge, the judge accepted that it was necessary for the Respondent to explain his award for non-pecuniary loss by breaking it down into its constituent parts. The judge found that until the award of £125,000 was further itemised he could not decide whether whatever part of it represented long term loss of liberty was so low as to be irrational, but the figure for loss of liberty "should reflect its duration on a proportionate but not arithmetically extrapolated basis". That was said in relation to the line of authority to which I have referred, including Lunt and ex parte Evans, both of which had been cited to the judge. There were a number of other issues raised in the Administrative Court with which, for present purposes, I need not be concerned.
27. There was an appeal by the present Respondent to this court which was only successful in relation to a matter of no present relevance. Auld L.J., giving the first judgment, set out the background and the submissions in relation to the first issue, namely how to apply by analogy civil law principles for the assessment of damages. He pointed out that when trying to establish a proper sum to be paid by way of compensation there is nothing which relates a particular period in custody, or a particular physical injury, to a specific sum of money, so whoever makes the assessment "needs some rational basis, that he can articulate, for arriving at one overall figure, and also some means of checking against double-counting or under-counting in respect of certain factors to which he has had regard." Auld L.J recognised that an Independent Assessor will always have experience in relation to common law damages, and that there are differences between the common law and compensation under the scheme as to what may or may not sound in damages. He also recognised that awards under the scheme are, at least initially, confidential, but itemisation may be essential to avoid double recovery if there is a common law claim arising out of the same facts. So in the end he accepted that the Independent Assessor "should identify the heads of suffering and attempt to evaluate them in monetary terms, where possible by analogy with comparable forms of suffering for which remedies and clear principles for their assessment are provided in civil law. As (counsel) noted, the most common types of non-pecuniary loss that are likely to arise in a miscarriage of justice claim are those that arise in malicious prosecution and false imprisonment claims, namely loss of liberty, conditions and effects of imprisonment, stress of the prosecution process and conviction, damage to reputation and family life, and other personal hardship." (Paragraph 45 to 46).
28. The second issue considered by this court was whether compensation awards should be broken down to separate out aggravating features. The court accepted that normally they should, and at paragraphs 76 to 86 of his judgment Auld L.J set out some broad objectives which an Independent Assessor should keep in mind when assessing. First, the injunction to apply principles analogous to those governing the assessment of damages for civil wrongs can have no content if it does not apply to "principles applicable to the assessment of damages in the most cognate civil law wrongs of malicious prosecution and false imprisonment" (paragraph 76). In such cases fairness requires explanation and consistency, as illustrated in Thompson and Gerald v Metropolitan Police 10 June 1998 unreported. The guidance to juries is also of value to judges, and is in harmony with the general trend for "judicial and quasi-judicial bodies to give more by way of reasons for their decisions than many formerly did" (paragraph 76 – see Vento (surpra). So the Independent Assessor can be expected to give an adequately reasoned decision, and his second broad objective should be to provide a useful starting point which will enable himself and his successors to be consistent. Auld L.J. thought that this court should decline to suggest figures for conventional awards for "loss of liberty simpliciter" because of the possible variants, and the confidentiality of the awards, but he considered that –

"A fully reasoned approach on analogy with that indicated in Thompson and Gerald applied proportionally and, where appropriate, adapted to the circumstances of the individual case .... would be a useful aid to consistency."

29. The third broad objective to be borne in mind is –

"The need, wherever practicable on the facts of the case to identify separate sums in the award for, on the one hand, so-called loss of liberty simpliciter and, on the other, for significant and self-contained aggravating features, identified and assessed individually or, at least, in the aggregate."

30. As Auld L.J went on to say in the same paragraph –

"The reality of any claim for loss of liberty is that it necessarily brings with it associated forms of suffering and deprivation. The severity of them will vary according to the circumstances, conditions and duration of the imprisonment and also to each claimant's own personal circumstances and sensitivities, but many of them are in practice inseparable from the impact of simply loss of liberty."

31. It is therefore, as Auld L.J. recognised at paragraph 81, artificial to expect too water-tight a distinction between loss of liberty simpliciter and aggravating features, and in some cases it may be appropriate for no distinction to be made.

6. The Assessor's Decision in this case

32. The final decision of the Respondent in this case is dated 7 September 2007. He noted that the Applicant was convicted of murder, resulting in a term of life imprisonment with a tariff fixed for 15 years. He had other convictions, but the Respondent did not consider it appropriate to take them into account. There were aggravating features, including in particular bullying by the police during the investigation of a suspect who had significant limitations of intelligence and social functioning. As the Respondent said, the scheme which he had to administer does not allow for exemplary damages. The Respondent referred to O'Brien, Thompson and Evans. He also referred to the JSB Guidelines on General Damages in Personal Injury Cases, 7^th Edition (although the 8^th edition had by then been published), and to John, accepting that an award for a miscarriage of justice could be cross-checked against an award for serious personal injuries as indicated by the Master of the Rolls in John. At paragraph 13 (a) he said –

"In a miscarriage of justice such as this case it is impractical to separate the malicious prosecution elements from the false imprisonment elements of compensation as they are nearly all overlapping."

33. That seems to have been accepted, but what he did not accept was the Appellant's submission that for loss of liberty simpliciter he should receive as much as £125,000. At paragraph 13 (c) the Respondent said –

"I do not accept claimed amounts arising by way of extrapolation from awards in relation to short terms of imprisonment such as Thompson and Evans applied over many years of imprisonment. This is an entirely artificial exercise which supposes an implicit tariff per year or at least minimum tariff for loss of liberty simpliciter. I do not regard the Court of Appeal decision in this case nor Thompson and Evans to support any such approach."

34. The Respondent then explained that the factors in relation to the Appellant's claim to which he had regard, and at paragraph 18 he said –

"I have come to the conclusion that the overall basic award in this application absent aggravating factors analogous to aggravated damages should be £120,000. This takes into account matters beyond the usual suffering of imprisonment and to which I give special weight and which are supported by the evidence in the application. The sum for them is £65,000 and is dealt with in detail below.

The starting point is what I think is reasonable compensation for about 4 years and a month of loss of liberty and the consequences of imprisonment which usually arise in any sentence of imprisonment but without the matters to which I give special weight. I conclude that £55,000 is a fair and proper global sum in this case. In considering its appropriateness and whether it is proportionate there is a cross-check to its reasonableness from the Guidelines for General Damages for Personal Injury. The figure of £55,000 is at the top of the range for severe psychiatric injury. This is not intended to be a comparison or equi-paration of an award but an indication of that which is proportionate and reasonable. In my view the figure of £55,000 takes into account during the months in question the initial impact of imprisonment and a reasonable reduction or tapering as time goes by but always taking into account that any imprisonment continues to be suffering as it continues both in terms of loss of liberty and the usual conditions of imprisonment."

35. Ms Williams QC, for the Appellant, accepts that even though the Appellant was wrongly convicted the Respondent was right to taper his award, (in light of the "comparable tort authorities and the obligation of the Assessor to apply principles analogous to those governing the assessment of damages for civil wrongs referred to above), but she does point to the absence of any explanation as to how the figure of £55,000 was achieved other than the negative assertion in paragraph 13 (c) quoted above.

7. The Divisional Court

36. When the Appellant and Darren Hall sought judicial review of the Respondent's decision the matter came before the Divisional Court, and on 13 November 2008 Latham L.J gave the leading judgment in that court, with which Swift J. agreed [2008] EWHC 2758 (Admin). The only part of the Respondent's award to the Appellant which was challenged was the award of £55,000 for loss of liberty, his claim being that it –

"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 (the Respondent) failed accordingly to apply the right principles, and that he awarded sums under this heading which were unreasonably and irrationally low" (judgment paragraph 5)."

37. Having cited extensively from the Respondent's award Latham L.J turned to the Appellant's argument. His counsel had relied upon the now familiar authorities – John, Scotland (which the court seems to have misunderstood), Thompson, Vento, Lunt and Evans – not as the foundation for an arithmetical approach, but to attempt to demonstrate that the Respondent had grossly undervalued the loss of liberty aspect of the Appellant's claim. At paragraph 18 Latham LJ accepted that –

"There can only be public confidence in the integrity of the legal system overall if awards for non-pecuniary loss in the different scenarios in which they can be claimed bear some sensible and appropriate proportion to each other."

38. At paragraph 20 Latham LJ rejected the argument that the Appellant went wrong in law saying –

"I cannot see that this is sustainable. Whilst he did not deal with the authorities in detail, and in particular in the way that they were presented by the claimants both to him and to us, I can see no justification for concluding that he failed to take into account the awards that were in fact either made or upheld in those authorities, or the approach to the assessment of the appropriate awards."

39. I find that passage difficult to follow. As the Respondent did not deal with the authorities in detail, and as the award cannot on the face of it be related to the authorities, how could the court be satisfied that they were properly taken into account?
40. Latham L.J. seems to have been troubled by the Respondent's use of the JSB's guidelines, because in paragraph 20 he continued –

"20..... What perhaps requires examination is the way in which he used the Guidelines on General Damages given by the Judicial Studies Board. It is the only yardstick expressly identified; the complaint therefore is that it was the only yardstick that was used.

21. That seems to me to ignore the fact that these are not the first awards for compensation which the Defendant has made."

41. The judgment then referred to O'Brien saying, inaccurately, in paragraph 21 that –

"There was no criticism by the courts of the award of £115,000, which must have been for loss of liberty simpliciter, as one would have expected there to have been if it was considered irrationally low."

42. As I have explained, the core complaint in O'Brien was that the award of £125,000 (not £115,000) was not explained sufficiently to make it clear how much of it was attributable to loss of liberty simpliciter. That is why Maurice Kay J said, as his first conclusion in paragraph 30, that –

"Unless and until it is further itemised it cannot be said that whatever part of the £125,000 represents the long term loss of liberty is irrational"

43. In fact after the Court of Appeal had given its judgment in O'Brien the Respondent reassessed the loss of liberty element at £125,000. Permission was then given to seek judicial review in relation to that award, but it was not pursued because O'Brien obtained a substantial award of damages from the relevant Chief Constable.
44. Returning to the decision of the Divisional Court in the present case, Latham L.J. in paragraph 21 acquitted the respondent of any suggestion that he misused the JSB guidelines, and in paragraph 22 he declined to say that the awards were irrationally low.

8. Grounds of Appeal

45. In this court the Appellant advances three grounds of appeal, contending that the Divisional Court should have found that –

(1) The Respondent's approach to the civil law awards for shorter terms of unlawful imprisonment was flawed because, in particular –

1. He had not attempted or maintained a proportionate relationship with those awards (as required by O'Brien):

2. He had not (apparently) arrived at his assessments by reference to those awards, so he failed to apply analogous principles from the most cognate torts (as required by O'Brien) or failed to have regard to a relevant consideration.

(2) The Respondent fell into legal error in his approach to non-pecuniary awards in personal injury cases.

(3)That the Respondent's award was irrationally low, and the Divisional Court should not have regarded the award of £125,000 in O'Brien as any support for it.

9. Submissions

46. In her written and oral submissions Ms Williams contended that –

1. The Respondent, when making his award, was obliged to follow principles analogous to those applied at civil law in relation to the assessment of damages (O'Brien).

2. In the present case the awards made in the civil courts to compensate for short periods of unlawful imprisonment were an essential starting point.

3. An award for a longer period had to be related to them proportionately (O'Brien) albeit not by means of a simple arithmetical progression.

4. There was no basis on which the Divisional Court could find that the Respondent had taken the civil court awards properly into account.

5. The sum of £55,000 could not be related to the civil awards and was itself irrationally low.

6. The Respondent seems to have used no discernible yardstick other than his own experience, and a cross-check against the general level of awards in cases of personal injury.

7. The Divisional Court's understanding of what was decided in O'Brien must have contributed to its willingness to support the Respondent's low award.

47. For the Respondent Mr Tam QC. submitted that –

1. The Respondent did not fail to have regard to the civil awards for short periods of false imprisonment. The cases had been cited to him previously, as well as on this occasion.

2. He was entitled to refuse to extrapolate figures from them. The differences were too great.

3. The Respondent, in fixing a figure, must have had regard to the relevant circumstances of the Appellant's case, to the need for proportionality, meaning in this context that a longer period of detriment calls for a higher award, and to the need to taper, and then made use of his own considerable experience.

4. Of the cases cited Lunt in particular is of little assistance because it was plainly not an award for loss of liberty simpliciter. Aggravating features were taken into account, so if a comparison is possible it should be with the whole of the Appellant's award.

5. The Respondent made proper use of the personal injury awards , simply as a cross-check on his conclusions

10.Discussion and Conclusion

48. I would allow this appeal on grounds 1 and 3 for the reasons advanced by Ms Williams. In my judgment the Respondent should have taken a careful look at the guidelines in Thompson and at the civil law awards, and decided how best to apply them. I agree with Mr Tam that the Respondent must have been fully alive to those decisions, but he seems to have decided that they could not assist him. I agree that in the light of the authorities there was no room for an arithmetical calculation, but, conversely, if the Appellant's period of incarceration had been about 60 days it is difficult to see how the Respondent could properly have done other than begin by considering what in Evans and Bouazza was awarded for loss of liberty simpliciter. The Respondent did not have the benefit of the judgment in B but the judgment in that case helpfully spells out how the Deputy Judge arrived at his conclusion, and if he was right when he awarded £32,000 to compensate for an unlawful 6 month extension of a period of detention which was lawfully begun I do not see how £55,000 could possibly be sufficient for a period of incarceration of over 4 years which was unlawful from start to finish. In my judgment the Respondent must have erred in law by failing to make proper use of the civil law awards, because without much explanation he arrived at an award which is irrationally low, and the Divisional Court erred in failing to recognise that fact. I would therefore allow the appeal and remit the case to the Respondent to re-assess his award for "loss of liberty and the consequences of imprisonment which usually arise in any sentence of imprisonment" in the light of the judgment of this court.

Lord Justice Lloyd:

49. I agree

Lord Justice Mummery:

50. I also agree.