QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN On the application of (1) MICHAEL O'BRIEN, (2) VINCENT HICKEY AND |
(3) MICHAEL HICKEY
|- and -|
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
Hearing dates : 11-13 March 2003
Crown Copyright ©
Mr Justice Maurice Kay:
"(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."
(1) non-pecuniary loss
- for all factors other than psychiatric illness: £140,000
- uplift for aggravating features 35,000
- psychiatric illness 75,000
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
(1) non-pecuniary loss 90,000
- of this figure, £50,000 represented past and
present psychiatric injury
- interest 3,248
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
Thus, the total award was £506,220.20, in respect of which interim payments of £285,000 had previously been made.
(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
(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
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
Ground 1: the legal parameters of an assessment
"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 "experienced in the assessment of damages". The crucial provision is the first sentence of paragraph 5 which states:
"In reaching his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs."
It then lists various manifestations of pecuniary and non-pecuniary loss as "factors which may be relevant according to the circumstances."
"In its ordinary and natural meaning 'analogous' means 'similar or corresponding in some respect'. I can find nothing in the way that the applicant's compensation has been assessed which is similar to or corresponds with how it would have been estimated if he had been a plaintiff in a civil claim. His compensation has been linked to a scale of damages which is no longer applicable; he has had his compensation reduced to keep it in line with an earlier award to his co-accused and he has been penalised for the delay in submitting voucher details to support his claim. None of these effects would have accrued if he had been pursuing a civil action. I cannot accept, therefore, that the assessment of compensation has been similar to or has corresponded in any respect with the way damages have been assessed."
That resulted in the quashing of the part of the award which related to non-pecuniary loss.
Ground 2: failure to break down the award for non-pecuniary loss
"I accept that I should include in this Assessment sums analogous to the compensatory element of an award of aggravated damages, if a court would have included such an award in similar circumstances. Whether the amount of this element should be spelt out specifically in this Assessment raises a more difficult issue. There are arguments either way. On the one hand, an Assessment is intended to reflect appropriate overall compensation for the miscarriage of justice which has occurred: it is all part of one exercise. Sub-division, particularly in the areas of wrongful arrest, false imprisonment and malicious prosecution, tends to be artificial and to give rise to the very real risk of overlap and double-counting. On the other hand, it is said that, in the ever-increasing quest for transparency, an applicant is entitled to a breakdown of his Assessment. It seems to me that the balance of judicial authority is increasingly moving towards the latter view: see, for example, the observations of the Court of Appeal in Commissioner of Police for the Metropolis v. Gerald; and, accordingly, I accept that I should now follow the suggested practice."
It seems to me that Gerald is simply an application of the approach previously set out in Thompson, where the Court of Appeal was concerned with the provision of guidelines in civil jury trials involving wrongful arrest, false imprisonment and assault. Giving the judgment of the Court, Lord Woolf MR said (at p516D):
"The jury should then be told that if they consider the case is one for the award of damages other than basic damages then they should usually make a separate award for each category. (This is contrary to the present practice but in our view will result in greater transparency as to the make-up of the award)."
"However, I do not consider that there should be an assessment approach based on listing them each in turn, making an award for each in turn, and aggregating the total. That is to convert the process of fair compensation into a mathematical analysis which is highly unlikely to be realistic or reasonable. There is inevitable merging or overlap in factors which should be taken into account so as to produce a fair overall total…..It is for the Assessor to act on principles analogous to the quantification of damages at common law. Those principles are to be taken into account but not regarded each in turn as determinative of that component in the amount of the award."
In the Hickey assessments, Lord Brennan did not explain his approach in the same way but it is clear that he proceeded as he had explained in O'Brien. However, in all three cases he returned to the subject in the addenda which followed further representations and the commencement of these proceedings. In the case of O'Brien he added:
"I do not regard these factors properly to be described as 'heads of loss', as if each represented a separate 'head of damage' or was capable of being given a discrete and reliable separate valuation. These factors merge and overlap. They all represent the suffering of punishment. Ascribing a reliable valuation to each component is impractical and unnecessary. The key question is whether the overall assessment represents fair compensation."
He considered Sir David's later approach to be erroneous and expressly agreed with his earlier approach. Lord Brennan sought to distinguish Thompson and Gerald on the basis that they were concerned with directions to juries and did not amount to "a considered analysis of how non-pecuniary loss under the present scheme falls to be considered". Moreover, Thompson itself did not require a breakdown as detailed as the one Sir David had provided in the Birmingham Six case. He was critical of Sir David's approach whereby he had itemised seven factors, allocated figures to each of them, aggregated the seven figures and concluded that the total was reasonable "when considered in the round". He considered that such an approach:
"would produce unnecessary complexity, and what I regret to describe as a spurious mathematical framework to an overall assessment. "
In the addendum in the Hickey cases, he said the same. However, in both addenda, he referred to two qualifications "which may arise, depending on the circumstances of particular cases". First, it may be appropriate to quantify a sum representing "the aggravating factor in relation to conduct under section 133". Secondly, the personal injury element should be quantified because it attracts interest.
"the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered."
Indeed, the need to avoid inflated awards and double counting is referred to in most of the post – Thompson cases. As Mummery LJ said in Vento (at para 68):
"Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damages. In particular, double recovery should be avoided between the individual heads of damage. The extent of overlap will depend on the facts of each particular case."
I reject the suggestion that this type of breakdown would present the Assessor with an impossible task. That is clearly not the case.
Ground 3: aggravated compensation
"I do not accept that this compensation scheme should operate on the basis that misconduct in relation to police investigation or prosecution creates an entitlement to 'aggravated damages' to be awarded as at common law. This scheme does not involve litigation nor a requirement that any defendant should compensate the applicant.
In taking into account the conduct of the investigation and prosecution in any particular case and determining whether the same gives rise to any aggravating factor, I do not consider it necessary or appropriate to create the concept of 'aggravated damages' or the guidance in Thompson as binding or rigidly applicable to the assessment of that factor in this compensation scheme.
I consider the correct approach to be that where aggravating factors are established in any particular case, then the compensation should take that into account. It is to be taken into account as to its effect on the applicant and its part in the miscarriage of justice of which he was a victim. Each case must be considered on its own facts. This factor may justify compensation, but nevertheless compensation which is proportionate to the rest of the award."
He then expressly dissented from the view of Sir David Calcutt, which he identified as a straightforward application of aggravated damages to the statutory scheme, on the basis that neither "section 133 nor any concept of fair compensation requires this approach" because, by reference to paragraph 5, there is no "analogous principle".
Ground 4: the libel analogy
"the actual range of awards in such cases is not of particular assistance in assessing compensation for miscarriages of justice."
Miss Williams criticises this, essentially on the basis that the written submissions to Lord Brennan had contended for a comparison with libel awards and that the rejection of those submissions is unreasoned and irrational.
Ground 5: "saved living expenses"
"I consider that saved living expenses should be taken into account for the following reasons:
…Common Law principles require that there should be no double compensation. Past and future loss of earnings compensation embraces living expenses that will be paid for out of such earnings. In fact, because he was imprisoned, the applicant did not incur such living expenses. That provides a financial benefit for which credit must be given. The principle accords with the common law approach. See for example Hodgson v. Trapp  AC 807 in which, before the later statutory change, the court felt that past and future benefits must be deducted so as to avoid double compensation."
Lord Brennan then referred to two further "reasons", those being the effect of Meah v. McCreamer  1 All ER 367 and section 5 of the Administration of Justice Act 1982. I shall return to these later. For the moment, I go forward to his further reasoning in the addendum. The relevant passage reads:
"The true analysis is that by reason of a miscarriage of justice, he has suffered a loss of earnings. Had he not been the victim of a miscarriage of justice, part of those earnings would have been spent on his own living expenses. 25%….probably represents a modest sum for such living expenses. Having dealt with the question of what he has lost by reason of his imprisonment, there is a requirement to consider any set-off against that loss for any expense which has not been occasioned by reason of his being in prison. It is in that context that the deduction from loss of earnings arises in relation to saved living expenses."
"When a plaintiff is injured and as a result is paid no wages his immediate real loss is that part of his net earnings that were available for current expenditure. In respect of this part of his earnings the object of which is to provide income for current expenditure the tortfeasor is, subject to sums necessarily spent to earn the income, entitled to no credit for expenditure saved as a result of the injury; the principle that it is no concern of the tortfeasor how the plaintiff chooses to spend his income applies. "
"So I approach this case on the basis that there is no continuing financial loss as a result of his being in prison, that being the manner in which, as I understand it, the case was presented by counsel for the plaintiff."
Lord Brennan took comfort from the eminence of counsel who put the case in that way. Counsel in the present case have diligently obtained the recollection of counsel for the plaintiff in Meah. I do not think that I should consider that to be of more than archaeological interest.
Ground 6: deduction for "criminality"
"Michael Hickey was a month short of his eighteenth birthday at the time he was convicted. However, by that time he had already been convicted on five previous occasions of offences of dishonesty, burglary and driving offences, for which he had variously been fined and made the subject of supervision orders. I note from his mother's statement that two of the offences of dishonesty were of a particularly nasty type, committed within his own family. I am ready to disregard the conviction for shoplifting that occurred after his release in 1997. However, most seriously, there are the two convictions for robbery committed with a firearm. Whilst he was very young at the time, there were two offences, as against only one for Vincent Hickey. The sentence I have accepted would have been passed of eight years is the absolute minimum that would be expected, even at this age, for such crimes. There is no responsible basis upon which such serious convictions can be ignored in the assessment of non-pecuniary loss. In the circumstances, I make a reduction of 20% in respect of such matters from the total award of non-pecuniary compensation. This is slightly less that Vincent Hickey because of age and different record."
"Vincent Hickey had pleaded guilty to obtaining by deception at the 1979 trial….In addition, he has seven other convictions between the age of 15 and 25, when he was convicted of these matters. These convictions involve some 13 offences, including dishonesty and burglary, assaults and driving whilst disqualified. For these offences he was variously fined, sent to a Detention Centre, and given a suspended prison term. I regard his previous convictions as significant, occurring as they did during his adult life, as well as when a youth. Prior to the present convictions he had been most recently convicted at St Albans's Crown Court on 24 November 1978, when he received a suspended sentence. The [robbery] was a very serious crime and its occurrence marked the culmination of significant criminal behaviour by this applicant.
Having regard to the seriousness of these matters and in particular the robbery….I firmly conclude that the non-pecuniary loss award should be subject to a deduction of 25%. This I regard as the very least deduction than can reasonably be made, having regard to his criminal behaviour."
"So far as other convictions are concerned, there is, unfortunately, a long criminal record in the case of Mr. Robinson. Whilst he was in Australia, he was convicted on several occasions between 1954 and 1958 of several offences of breaking and entering, larceny, the illegal use of a motor vehicle, in respect of which he received suspended sentences of imprisonment, fines, effective imprisonment and hard labour. On his return to this country, he was, in 1966, convicted of factory breaking, burglary (in respect of which he was sentenced to three years imprisonment), going equipped for theft, criminal damage and burglary, theft and taking a motor vehicle without lawful authority (in respect of which he was sentenced to a term of imprisonment which was suspended). Mr. Robinson is entitled to point out that, prior to his conviction in November 1979, he had never previously been convicted of any offence involving personal violence. He is also entitled to point out that he had never previously received a sentence as lengthy as any of the sentences which were passed on him in November 1979. But there are also several other matters which have to be borne in mind. First, he is not in the position of an applicant for compensation who can claim that it was their first experience of imprisonment. Nor can he claim that he had not previously experienced a significant term of imprisonment. But he is also entitled to point out that the circumstances of his imprisonment, as a result of his conviction for murder, his treatment, both by the prison staff and by his fellow inmates, was of a totally different order from the treatment which he had experienced previously or which he would have experienced had he simply been convicted of the robberies. There must be, in my view, some reduction of the level of compensation which would otherwise be payable, for non-pecuniary losses, but, in the circumstances of this case I take the view that the reduction can be comparatively modest."
"Each case must be considered on its own merits, as at the time of assessment. Uniformity with previous decisions as to co-applicants or others is not required (whether it be upward or downward) – see: R v. Secretary of State for Northern Ireland, ex parte Hegan…..I do not agree that the 10% reduction in Robinson cannot be exceeded because of a supposed need for, or expectation of, consistency. Consistency as a legal virtue is not synonymous with mathematical consistency as to the amount of any reduction under section 133(4A). Consistency between mine and Sir David's assessment is an elusive concept if it is interpreted to be necessary from me where Sir David's conclusion was favourable to an applicant, but when it was unfavourable I should be free to adopt a different approach."
Ground 7: financial advice
"I regret to conclude that an award for the cost of future investment advice cannot be made because:
a. The current rate of interest for the calculation of multipliers at 2.5% is based upon investment in gilts and therefore at the lowest risk to the investor/claimant.
b. The Lord Chancellor's reasons in concluding that 2.5% should be the current rate make it clear that it is open to a claimant or this applicant to invest in equities as well as gilts, in so far as that produces a better return, so to benefit in addition to the lower rate of 2.5% multiplier which the new change produced.
c. The applicant is neither a patient nor a minor and therefore is not in a category which the law presently recognizes as justifying compensation in respect of investment costs."
He revisited this reasoning in greater detail in the addendum, in which he referred to recent authorities on the law of damages, including Wells v. Wells  AC 345.
Ground 8: counselling costs in relation to Michael Hickey's mother
"it is not open to me to make any award in respect of counselling expenses incurred by his mother…..as neither under this scheme or at common law can such third party expenses be recovered. "
In the addendum he said:
"Section 133 provides for compensation to the person who 'has suffered punishment'….There is no provision for compensation to relatives or third parties in respect of their suffering or its financial consequences to them in particular as to the cost of medical treatment."
Mr. Engelman relies on paragraph 5.1(d) of the guidance Note which includes among factors which may be relevant according to the circumstances
"additional expenses incurred, e.g. for travelling, in consequence of detention, including such expenses incurred by the claimant's immediate family."
He also submits that the rejection of these counselling costs in inconsistent with the approach to other items such as campaign and travel costs incurred by others. Thus, the award in Michael Hickey's case included £35,000 and £15,000 for campaign and travel costs and Lord Brennan referred to the £35,000 as "fair recompense to his mother". His thinking can be observed more fully in the Vincent Hickey assessment where he described campaign costs as "being recoverable on the basis that this is a wholly exceptional case in which the campaigning was long and arduous and eventually had a beneficial result", adding
"the award is not made on the basis that it recompenses directly those who have incurred the expense. Rather, the award is to the applicant….on the basis that he will be expected to make recompense to those who had so campaigned and met expenditure in acting on his behalf." (My emphasis)
Ground 9: interest on pecuniary losses
"I accept and agree with the approach set out in the Robson Rhodes report. I do not think the personal approach of half the annual court rate is appropriate in this area of compensation for victims of miscarriages of justice."
There is a corresponding passage in the case of Vincent Hickey, to which Lord Brennan added:
"Whilst the interest figure so produced is less than the personal injury rate, it nevertheless provides a substantial compensatory element and is fair in the assessment of compensation."
The reasoning of Robson Rhodes, which I infer was adopted by Lord Brennan, is contained in this passage:
"…..in my experience of similar long tail claims interest calculated by reference to the year in which each loss arises is a more appropriate method as it calculates interest for each year's losses up to the present day. The half rate approach was adopted in Jefford v. Gee because interest was not large enough to warrant minute attention to detail. The half rate was considered to give a reasonable approximation. This is not the case with long tail claims. In [Michael] Hickey's claim interest is not minute…..as claimed it represents 95% of the past loss claimed. In my opinion it does not give a reasonable approximation. For example for loss of earnings the half rate results in the higher rates of interest in the 1980s being applied to losses which are weighted towards the 1990s. This is not equitable."