HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

O'Brien and others (FC) (Appellants) v. Independent Assessor (Respondent)

[2007] UKHL 10

LORD BINGHAM OF CORNHILL

My Lords,

1. This appeal by Mr Vincent Hickey and Mr Michael Hickey raises two questions of law relating to the assessment of compensation payable to them by the Secretary of State for the Home Department under section 133 of the Criminal Justice Act 1988 as amended. This section provides for payment of compensation to those who (like the appellants) have suffered punishment following a conviction which involved a miscarriage of justice. When, as here, the Secretary of State has determined that victims have a right to compensation under the section, an independent assessor (in the appellants' case, Lord Brennan QC) assesses the amount of the compensation payable, which must cover heads of loss not susceptible to precise arithmetical calculation (loss of liberty, loss of family and social life, injury to reputation, emotional suffering and anguish, mental illness caused by the experience of imprisonment and such like) and also heads of loss susceptible to such calculation (loss of past and future earnings, loss of pension rights, relatives' visiting expenses, expenses incurred in securing release, legal expenses and so on). The former heads are conveniently referred to as non-pecuniary loss, roughly equivalent to general damages recoverable on proof of an actionable civil wrong, the latter as pecuniary loss, roughly equivalent to special damages.

2. In calculating the pecuniary loss suffered by each of the appellants, the assessor considered what sums the appellants would have earned if they had been at liberty but which they had been unable to earn because they were in prison. No issue arises on that calculation. But the assessor further considered that to award the appellants the whole of that sum would over-compensate them because, had they been at liberty, they would inevitably have incurred personal living expenses to provide the necessities of life which, because they were in prison (although wrongly and of course involuntarily), they had not incurred. So he deducted 25% from the appellants' lost earnings as calculated to achieve the figure of what, in his judgment, the appellants had actually lost, the balance which would have been left to them after feeding, clothing and accommodating themselves if in fact they had earned the sums which it was calculated they would have earned if at liberty. No issue arises on the percentage which the assessor used, but the appellants challenge the principle of making any deduction at all. The Queen's Bench Administrative Court (Maurice Kay J) found in their favour on this issue but the Court of Appeal (Auld and Longmore LJJ and Gage J) upheld the assessor's decision [2003] EWHC 855 (Admin); [2004] EWCA Civ 1035. The appellants contend that no deduction should have been made. This contention raises the first issue for decision by the House.

3. The second question pertains to the assessor's calculation of the appellants' non-pecuniary loss (other than that relating to psychiatric illness). In making percentage deductions to take account of the appellants' other convictions and any punishment resulting from them, the assessor applied percentages (25% in the case of Vincent Hickey, 20% in the case of Michael). This was a departure from the percentage (10%) previously applied by a different assessor (the late Sir David Calcutt QC) in assessing the compensation payable to Mr James Robinson, an alleged participant in the same crime and a victim of the same miscarriage of justice as the appellants but a man with a much worse criminal record. Counsel for the appellants does not criticise the making of a percentage deduction to take account of the appellants' other convictions and punishment resulting from them, nor does he contend that Lord Brennan was obliged to follow the precedent set by his predecessor by deducting the same or a similar percentage. His argument, founded on the principle that like cases ought ordinarily to be treated alike in the absence of good reasons for differentiation, is that if the assessor chose to depart significantly from the percentage applied by his predecessor, he should have given reasons to show that there was justification for doing so. This, it is said, he did not. The Divisional Court and the Court of Appeal did not accept the appellants' consistency argument, then somewhat differently put. Its correctness raises the second issue now before the House.

The facts

4. On 9 November 1979 the appellants and Mr Robinson, a co-defendant, were convicted at Stafford Crown Court of murdering Carl Bridgewater, a 13 year old newspaper-boy, during a burglary at Yew Tree Farm in the West Midlands.

5. Vincent Hickey was born in 1954 and was aged 25 on conviction. He had been convicted of some 17 offences, mostly minor, between 1970 and 1978. He had served one short custodial sentence as a juvenile and had been sentenced to 12 months' imprisonment suspended for 2 years. Michael (his cousin) was younger, born in 1961 and aged just under 18 on conviction. He had committed 15 offences, mostly minor, between 1976 and 1978. He had not served a custodial sentence. James Robinson was older than either of the appellants, aged 45 on conviction, and had a much worse criminal record than they did.

6. For the murder of Carl Bridgewater, Vincent Hickey was sentenced to life imprisonment. He was also sentenced to concurrent terms of 10 years' for aggravated burglary at Yew Tree Farm and 12 months' for an offence of deception. Michael, because of his age, was sentenced to detention during Her Majesty's Pleasure for the murder and 8 years' detention for the aggravated burglary at Yew Tree Farm. He was also sentenced to 12 years' detention concurrently for each of two armed robberies, at Chapel Hill Farm and a Tesco supermarket, to which he had earlier pleaded guilty. James Robinson was sentenced to life imprisonment and 10 years' imprisonment for the murder and aggravated burglary at Yew Tree Farm. He was also sentenced to 15 years' imprisonment concurrently for each of the Chapel Hill Farm and Tesco armed robberies, and a short suspended sentence was activated. The Chapel Hill Farm armed robbery was also charged against Vincent Hickey. He was never tried for or convicted of that crime, but it was later accepted that he had been complicit in it.

7. The appellants and Mr Robinson tried to challenge their convictions of the Yew Tree Farm offences, of which they always claimed to be innocent, but leave to appeal was refused in December 1981 and, on reference of their cases to the Court of Appeal by the Secretary of State under section 17(1)(a) of the Criminal Appeal Act 1968, their appeals were dismissed in March 1989. Following a further reference to the court by the Secretary of State, serious irregularities in the conduct of the investigation and trial came to light, and the prosecution accepted that the trial of the appellants and Mr Robinson had been fundamentally flawed. They were released on unconditional bail in February 1997 and their appeals were allowed, and their convictions quashed, on 30 July 1997. The Secretary of State very promptly decided that the appellants had a right to compensation.

8. This was a grave miscarriage of justice. Making allowance for the term of imprisonment which Vincent Hickey would in any event have served for the Chapel Hill Farm armed robbery, the assessor calculated that he had been wrongfully detained for 13 years and just over 8 months for the Yew Tree Farm offences. Making similar allowance for the period Michael Hickey would in any event have been detained for the Chapel Hill Farm and Tesco armed robberies, and also of his standing as a young offender, the assessor treated 12 years, 10 months and 4 days as the period for which he had been wrongfully detained for the Yew Tree Farm offences.

Compensation for miscarriages of justice

9. The background to the current statutory scheme is described in In re McFarland [2004] UKHL 17, [2004] 1 WLR 1289, paras 8-9, 22, and R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1, paras 5-6, 25-29, and it is unnecessary to repeat that summary. The right to compensation is contained in section 133 of the Criminal Justice Act 1988 which provides, so far as relevant:

"133.(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."

The Criminal Appeal Act 1995, by section 28, inserted a new subsection to follow subsection (4):

"(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."

The Home Office routinely issues a "Note for Successful Applicants" which explains but does not of course purport to modify the terms of the statute. Paragraphs 5-7 are relevant for present purposes:

"5. In reaching his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs. The assessment will take account of both pecuniary and non-pecuniary loss arising from the wrongful charge or conviction and/or loss of liberty, and any or all of the following factors may be relevant according to the circumstances:

5.1 Personal pecuniary loss

(a) loss of earnings as a result of the charge or conviction (to be supported by best available documentary evidence, together with details of any State benefits received during the same period);

(b) loss of future earning capacity;

(c) legal costs incurred;

(d) additional expenses incurred, eg for travelling, in consequence of detention, including such expenses incurred by the claimant's immediate family.

5.2 Non-pecuniary loss

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

6. When making his assessment, the assessor will take into account any expenses, legal or otherwise, incurred by the claimant in reversing his conviction, or pursuing the claim for compensation. In submitting their observations solicitors should state, as well as any other expenses incurred by the claimant, what their own itemised costs are, to enable them to be included in the assessment.

7. In considering the circumstances leading to the wrongful charge or 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 other public authority, or might have been contributed to by the claimant's own conduct. Although the amount awarded will take account of this factor, it will not include any element analogous to exemplary or punitive damages. The assessor will also have regard to any other convictions of the claimant and any punishment resulting from them."

10. Section 133 was enacted to give domestic effect to article 14(6) of the International Covenant on Civil and Political Rights, which the United Kingdom is bound in international law to observe. It 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."

This paragraph bears a very close affinity to article 3 of the 7th Protocol to the European Convention on Human Rights, by which the United Kingdom is not bound. Counsel for the appellants made submissions on the meaning of "according to law" in article 14(6), but in my opinion these words are plainly directed to ensuring that the right to compensation is governed by law and not discretion: UN Human Rights Committee, General Comment No 13, 13 April 1984. This is achieved by section 133 since, although the question whether there is a right to compensation is to be determined by the Secretary of State, a determination adverse to an applicant will be challengeable on familiar public law grounds.

11. The award of compensation under section 133 does not prevent an applicant pursuing any civil claim which he may have as a result of his wrongful conviction and punishment (although double recovery will be prevented), but nor does the right to compensation in any way depend on the existence or proof of any delictual wrong recognised by the law. Wrongful conviction and punishment may and often are the result of delinquency on the part of public officials or others, but this is not necessarily so. The Secretary of State makes payment out of public funds to victims of miscarriages of justice not because he or his officials are or are treated as being wrongdoers, but because such victims are recognised as having suffered what may (as here) be a great injury at the hands of the state and it is accepted as just that the state, representing the public at large, should make fair recompense.

12. It is for the assessor to judge, in any given case, what recompense is fair. Those appointed by the Secretary of State to carry out this task have, at least in recent years, been senior and distinguished legal practitioners with particular expertise in the calculation of damages for personal injuries. Some heads of loss under section 133 will not ordinarily be found in a personal injuries action, although they may feature in other tortious claims, but a number of them will and a broadly similar approach must be appropriate providing proper account is taken of factors peculiarly attributable to wrongful imprisonment and punishment. It is noteworthy that section 133 gives the assessor a very broadly-defined remit. It makes no provision for the sort of scrutiny to which a court would subject a contested claim involving hundreds of thousands of pounds. Assessments are made relatively infrequently, and are not published. I do not think section 133 was intended to encourage undue legalism.

The first question: the deduction from notional earnings

13. Mr Engelman's argument for the appellants, strongly put and with much citation of authority, was in essence very simple. The appellants were victims of a serious miscarriage of justice which led to their wrongful imprisonment for long years by the state. They are entitled to be compensated. Such compensation should, in accordance with familiar principles, be on a basis which is fair, just, reasonable and in accordance with public policy. It is unfair, unjust, unreasonable and contrary to public policy to reduce earnings lost as a result of wrongful imprisonment to reflect the free board, clothing and accommodation afforded to the prisoner. That is not a benefit, it is the very detriment on which the victim's claim to compensation depends. He should not be in effect charged for being wrongfully imprisoned, a procedure revolting to ordinary notions of fairness.

14. The assessor's response was also in essence simple. The trauma and suffering inherent in wrongful conviction and punishment are compensated by the award of compensation for non-pecuniary loss. The loss of which loss of earnings is an ingredient has a different object: to calculate as exactly as possible what in money terms the victim has actually lost. This calculation depends on a hypothetical assumption, that the victim had not been in prison at the relevant time, because if he had been he could not have earned wages in the market. So it must be assumed for purposes of this calculation that he was not in prison at the relevant time. On that assumption he would have had earnings, net of tax, of (let us say) x. But he would not have enjoyed x as a fund available for spending because if he had not been in prison he would have had to provide the necessities of life, which must be deducted to establish what he has actually lost. This is not to charge him for being in prison, nor is it to treat his wrongful imprisonment as a benefit. It is to recognise the reality (which authority enjoins decision-makers to do) that the sums could not have been earned had the earner not paid to procure the basic necessities of life. It is fair, just and reasonable to award the victim what he has notionally lost but no more, a course supported by legal authority and public policy expressed in statute.