The Law is an ass - Times Law Report

From The Times
March 15, 2007
Living expenses can be cut from compensation

House of Lords

Published March 15, 2007

Regina (O'Brien and Others) v Independent Assessor

Before Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches March 14, 2007

In determining the sum properly required to compensate victims of a miscarriage of justice which had led to long years of wrongful imprisonment, the assessor’s task was to assess what the victim had really lost.

It was therefore not unjust that the amount attributable to lost earnings was subject to a deduction for living expenses which the victim would have incurred if he had not been in prison.

The House of Lords so held, Lord Rodger dissenting, when dismissing appeals by the applicants, Michael Joseph Hickey and Vincent James Hickey, from the Court of Appeal (Lord Justice Auld, Lord Justice Long-more and Lord Justice Gage) ( The Times September 7 2004) which had allowed in part an appeal by the Independent Assessor, Lord Brennan, QC, from a decision of Mr Justice Maurice Kay ( The Times May 5 2003) quashing parts of the assessment of compensation to be paid to the applicants under section 133 of the Criminal Justice Act 1988.

In November 1979, Vincent and Michael Hickey, then aged 25 and 17 respectively, and a codefendant, James Robinson, then aged 45, were convicted at Stafford Crown Court of murdering Carl Bridgewater, a newspaper boy aged 13, during a burglary at Yew Tree Farm in the West Midlands.

Vincent Hickey and James Robinson were each sentenced to life imprisonment for the murder and to 10 years for aggravated burglary. Michael Hickey was sentenced to detention at her Majesty’s pleasure for the murder and eight years detention for the aggravated burglary.

He and James Robinson were also sentenced to 12 years detention and 15 years imprisonment, respectively, to run concurrently for each of two armed robberies at Chapel Hill Farm and a Tesco supermarket.

In July 1997 the convictions for the Yew Tree Farm offences were quashed when serious irregularities in the conduct of the investigation and trial came to light. The Secretary of State for the Home Department decided that the applicants and Mr Robinson had a right to compensation for miscarriage of justice.

Mr Philip Engelman for the applicants; Mr Ian Burnett, QC and Mr Robin Tam, QC for the Independent Assessor.

LORD BINGHAM said that in calculating the pecuniary loss suffered by each of the applicants, the assessor considered what sums they would have earned if they had been at liberty but which they were unable to earn because they were in prison.

The assessor considered that to award them the whole of that sum would overcompensate them because they would inevitably had incurred personal living expenses to provide the necessities of life which, because they were in prison, they had not incurred.

So he deducted 25 per cent from the lost earnings as calculated to achieve the figure of what, in his judgment, the applicants had actually lost after feeding, clothing and accommodating themselves. The applicants challenged the principle of making any deduction at all.

The second issue pertained to the assessor’s calculation of the applicants’ nonpecuniary loss. In making percentage deductions to take account of the applicants’ other convictions and any punishment resulting from them, the assessor applied percentages of 25 per cent in Vincent Hickey’s case, and 20 per cent in the case of Michael.

That was a departure from the 10 per cent previously applied by a different assessor, the late Sir David Calcutt, QC, in assessing the compensation payable to their codefendant James Robinson.

First question: deduction from notional earnings

Mr Engelman’s argument was that it was unfair, unjust, unreasonable and contrary to public policy to reduce compensation for earnings lost as a result of wrongful imprisonment to reflect the free board, clothing and accommodation afforded to the prisoner.

That was not a benefit, it was said, but the very detriment on which the victim’s claim to compensation depended. He should not, in effect, be charged for being wrongfully imprisoned, a procedure revolting to ordinary notions of fairness.

It was, in his Lordship’s opinion, inapt and understandably offensive to the applicants to regard or treat their imprisonment as a benefit conferred on them by the state.

A Prison Service Instruction (09/1999) on which they relied, forbade deductions for board and lodgings from the wages of prisoners working on enhanced wages schemes in prison or on prerelease schemes outside prison, accepting that prisoners could not be required to pay for their own imprisonment and could not consent to do so. That was a salutary principle.

But recognition of that principle did not resolve the issue on appeal. The assessor’s task, in relation to the applicants’ los of earnings claim, was to assess what they had really lost. That and that only was the loss for which they were to be compensated. The assessment had necessarily to be hypothetical, but must be as realistic as possible.

If the applicants were awarded the full sum of their notional lost earnings with no deduction save tax, they would in reality be better off than if they had earned the money as free men since as free men they would have had to spend the minimum necessary to keep themselves alive.

The deduction put the applicants in the position in which they would in reality have been had they earned the money as free men and so compensated them for their actual loss.

Second question: deduction for previous convictions

The applicants were younger men and had much less serious criminal records than Mr Robinson, and therefore one would have expected any deductions made under section 133(4A)(c), as inserted by section 28 of the Criminal Appeal Act 1995, in their cases (25 and 20 per cent) to have been smaller, or at any rate not greater, than that made in Mr Robinson's case (10 per cent).

Mr Engelman relied, by analogy, on authorities relating to disparity in sentencing and contended that the applicants had a justified sense of grievance such that their Lordships should interfere.

His Lordship said that in some cases an appeal against sentence had succeeded because right-thinking members of the public, learning of a lenient sentence imposed on a codefendant would think something had gone wrong with the administration of justice on also learning of a disproportionately severe sentence passed on the appellant.

In some of the cases such an appellant was said to have a justified sense of grievance. If the matter was viewed through his eyes alone that might sometimes be so.

But the appellate courts of all three United Kingdom jurisdictions had shown themselves to be, in varying degrees, resistant to disparity arguments of that kind.

While the perception of the sentenced defendant was important, a criminal sentence was imposed in the interests of the public and for its protection. The right sentence in a given case was that shown by statute, authority and other guidance to be best fitted to serve those ends.

Thus a court would, and generally should, be very slow to impose what it regarded as anything other than the right sentence simply because another court had imposed a “wrong" sentence on a codefendant.

The fact that a codefendant had been extremely fortunate was no a good reason for imposing on an appellant a sentence that would be less than the facts of the case merited.

The assessor’s task was to assess fair compensation for each of the applicants. He was not bound, and in his Lordship’s opinion was not entitled, to follow a previous decision which he considered erroneous and which would yield what he judged to be an excessive award. Lord Scott delivered a speech concurring on the first question but dissenting on the second; Lord Rodger delivered a speech dissenting on the first question but concurring on the second; Lord Carswell and Lord Brown delivered speeches concurring with with Lord Bingham.