Independent Assessor v O'Brien & Ors

This is an appeal by the Independent Assessor for England and Wales, Lord Brennan QC, appointed under section 133 of the Criminal Justice Act 1988, (“the 1998 Act”) against the order of Mr Justice Maurice Kay, as he then was, on 16^th April 2003, quashing parts of awards to the Respondents (“the claimants”) of compensation to be paid to them from public funds in respect of their sufferings from miscarriages of justice, as provided for by section 133. There are also cross appeals by the second and third claimants, Michael and Vincent Hickey.

The appeals concern the amount and manner of assessment by Lord Brennan of the three claims for compensation shortly after he had succeeded Sir David Calcutt QC as the Independent Assessor. On an application by the claimants for judicial review of those awards, the Judge quashed parts of each of them on three grounds and upheld parts of them on two grounds, all five of which are issues in these appeals. As to those parts of the awards that he quashed, the Judge ordered Lord Brennan to re-consider his assessments and, in doing so, to set out his reasoning in accordance with his, the Judge’s, judgment. The three grounds on which he quashed parts of the awards were that Lord Brennan:

Section 133 of the 1988 Act provides a scheme under which application may be made to the Secretary of State for compensation out of public funds for punishment resulting from a conviction where it has been reversed or there has been a pardon on account of a subsequently discovered miscarriage of justice (s. 133(1)). If the Secretary of State determines that an applicant has a right to such compensation, he refers the matter to the Independent Assessor, whom he has appointed, to determine its amount (s. 133(2) – (4)). In assessing the amount of compensation the Independent Assessor marks the hardship caused by a wrongful charge or conviction, whether or not the circumstances provide a ground for a claim of civil damages against the person or persons responsible for the miscarriage of justice. However, in making his assessment, the Assessor is enjoined by the Secretary of State to apply principles “analogous to those governing the assessment of damages for civil wrongs”, such assessment taking account of pecuniary and non-pecuniary loss.

The scheme, though now statutory, replaces an earlier ex gratia scheme, and sets out exactly the same principles as those in the earlier scheme on which compensation is to be assessed.

Section 133 was enacted to give effect to the United Kingdom’s treaty obligations upon ratification of the International Covenant on Civil and Political Rights (“the ICCP”) in 1976, Article 14(6) of which 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.”

Section 133(4A) of the 1988 Act, which was inserted by the Criminal Appeal Act 1995, s 28, provides that:

“[i]n assessing so much of any compensation payable … to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard 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

(c)

any other convictions of the person and any punishment resulting from them”

Section 133(7) of, and Schedule 12 to, the Act specifies who may be appointed as an Independent Assessor for the purpose of section 133. In the case of England and Wales, it is anyone with a general right of audience in the Supreme Court or in the county courts and magistrates’ courts. So far, there has only been one Independent Assessor, at any one time, appointed for England and Wales.

That is all the guidance given by the 1988 Act to the Independent Assessor as to the matters to which he should have regard when making his assessment. However, in June 1997 the Secretary of State re-issued guidance in the form of a note (“the Home Office Note”) that is sent to successful applicants for compensation informing them in broad terms of the basis on which it will be assessed and of the written form of assessment procedure to be adopted. I say “re-issued” because, since 1957 (that is, preceding the ratification of the ICCP in 1976 and the introduction by the 1995 Act of sub-section (4A)), the key passage in paragraph 5 has been in the same terms, namely that “[i]n reaching his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs”. And, as Sir David Calcutt observed in one of his of his last assessments, Mattan, 31^st January 2001.

“[5] It is implicit in Schedule 12 to the 1988 Act that a person qualified to be an assessor will be a person who is familiar with the assessment of damages in the courts. It is further implicit in section 28 of the Criminal Appeal Act 1995 that the distinction which is recognised in the courts between non-pecuniary losses and pecuniary losses is a relevant distinction in the assessment of compensation under section 133 of the 1988 Act. Further, and more importantly, the Home Office’s approach has been consistently maintained and acted upon ever since the statutory provisions came into force.

[6] The more difficult matter, in many cases, is to apply the analogy. Various torts bear some relevance to an assessment of appropriate compensation for a miscarriage of justice – for example, wrongful arrest, malicious prosecution, false imprisonment, assault, person injuries, defamation and, it has been suggested, misfeasance in public office – but none is capable of reflecting comprehensively what a court might award in a the case of a miscarriage of justice simpliciter. Accordingly, in my view, an assessor, whilst having regard to the level of awards made in respect of various torts, should seek to make one overall award which reflects the overall wrong which has been done by reason of the miscarriage of justice.”

Before I look at the relevant parts of the Home Office Note, which is entitled “Compensation for Miscarriages of Justice: Note for Successful Applicants”, I should explain that, consistently with Article 14(6) of the ICCP, which does not require that compensation should be assessed by a court, but “according to law”, the Independent Assessor’s role is an administrative, not a judicial, one. He deals with the whole matter on paper and in private, not by way of oral hearing, and his awards are confidential to the claimant. It is thus not like adversarial litigation in civil actions for damages (or even like proceedings before the Criminal Injuries Compensation Authority under the Criminal Injuries Compensation Act 1995, where there is an adversarial element). He has limited means of testing the facts relied upon by a claimant in support of his claim. There is no contrary case advanced by an opponent, nor any testing of the claimant’s case other than by the Assessor who, in addition to attempting to award him a fair sum for his suffering, also has a responsibility to safeguard public funds. To assist him in his assessment, he may seek the assistance of an accountant instructed for the purpose by the Secretary of State. The Home Office then, in consultation with the applicant, prepares a written memorandum for the assistance of the Assessor.

The Home Office Note begins with the general statement:

“A decision to pay compensation … does not imply any admission on the part of the Secretary of State of legal liability (other than a legal duty to pay compensation under the terms of section 133). Such decisions are not based on considerations of liability for which there are appropriate remedies at common law. The payment is made in recognition of the hardship caused by a wrongful charge or conviction and notwithstanding that the circumstances may give no ground for a claim of civil damages.”

The Note then provides, so far as material:

“1.

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.

2.

The assessment of compensation is undertaken by an independent assessor … who is experienced in the assessment of damages. …

3.

...

4.

…

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);

….

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. …

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.

8.

Under section 133(4) of the 1988 Act the determination of the amount of the award is entirely for the assessor. The Home Secretary has no power to vary that determination. Although in ex gratia claims the assessor’s role is strictly to advise the Home Secretary of the amount to be paid, successive Home Secretaries have agreed to be bound by the assessor’s recommendation. All claimants are provided with a written note from the assessor setting out the basis on which he has reached his decision.

9.

The assessor will not enter into correspondence or discussion about his award; the Secretary of State would consider approaching him on a claimant’s behalf only if, in response to written representations, there were good grounds for believing that the assessor had failed to take a material point into account, or had taken into account erroneous or irrelevant material. A claimant is not bound to accept the award finally made; he can pursue the matter by other means, for example by way of a civil claim for damages, if he considers that such a claim can be established against any person or agency.

10.

In the interests of a successful claimant, the Home Office will not normally make any public or other statement about the amount of an award in a particular case. Where he has reason to believe that any civil proceedings are being or may be pursued, the Secretary of State will notify the quantum of compensation awarded by the assessor, for use strictly in any such proceedings, to the defendant involved. The purpose of the procedure is to prevent double recovery.”

The first claimant, Michael O’Brien, had been wrongly convicted, at the age of 20, with two others of murder in July 1988 and sentenced to life imprisonment. The Court of Appeal, in January 2000, quashed the three convictions on a reference of the case by the Criminal Cases Review Commission, because fresh expert evidence cast doubt on the reliability of admissions made by one of his co-accused and because of many breaches by the police of the Police and Criminal Evidence Act 1984. During his period of 11 years and 43 days of custody, which encompassed the whole of his twenties, his young daughter died from cot death, his marriage came to an end by divorce and he missed the formative years of his son’s development. He found it difficult to deal with his imprisonment, and repeatedly protested his innocence.

The claims of Vincent and Michael Hickey for compensation arose out their conviction on 9^th November 1979, along with James Robinson, of, inter alia, the murder of a 13 year old schoolboy, Carl Bridgwater at Yew Tree Farm. Michael Hickey, who was aged 17 at the date of the conviction, was sentenced to detention at Her Majesty’s pleasure in respect of the murder, to 8 years detention for aggravated burglary, which was part of the same incident and to concurrent sentences of 12 years detention for two unconnected armed robberies at Chapel Hill Farm. Vincent Hickey, Michael’s cousin, who was then aged 25, was sentenced to life imprisonment for the murder, to 10 years for the aggravated burglary, part of the same incident, and 1 year’s detention for an unconnected offence of deception. He was later to admit that he had also been a participant in an armed robbery at Chapel Hill Farm. The third man, James Robinson was sentenced to life imprisonment for the murder, 10 years imprisonment for the aggravated burglary arising out of the same incident and, on his pleas of guilty, 15 years for two robberies in which a firearm had been used, one at Chapel Hill Farm. On 30^th July 1997 the Court of Appeal, Criminal Division, allowed all their appeals against conviction, and each of them then applied to the Secretary of State under section 133 of the 1988 Act for compensation for miscarriage of justice.

The first of the four applications to be heard was that of Mr Robinson. It was heard by Sir David Calcutt, who was shortly to retire as Independent Assessor. He awarded him £287,000 for non-pecuniary loss, £115,000 in respect of “basic” damages and £172,000 in respect of “aggravated matters”, from the whole of which he deducted 10% in respect of his “other convictions”. As will appear, one of the issues in the Hickeys’ appeals is the apparent lack of consistency between the level of that award, including the part of it attributable to aggravating matters and the percentage deduction for other convictions, and those aspects of their awards in Lord Brennan’s assessments.

Lord Brennan, who conducted the assessments of Michael O’Brien and Vincent Hickey, succeeded Sir David on 27^th July 2001. Through their legal representatives, each claimed compensation under various broadly corresponding categories.

Michael O’Brien’s legal advisers divided his claim into non-pecuniary and pecuniary suffering, and sub-divided the former into a number of headings broadly following the lines indicated by section 133 and paragraph 5.2 of the Home Office Note, namely: under the head of “Basic Damages”: 1) loss of liberty, 2) damage to reputation, 3) misconduct by the police, 4) injury to feelings and affront to dignity, 5) conditions of detention, 6) psychiatric injury, and 7) hardship to his son; and, under the head of “Aggravated Damages” those claimed “(although not necessarily limited to) elements of 1), 3) 4) and 5)” of the “Basic Damages”. Lord Brennan, in an assessment of 15^th May 2002, split the award between two main heads: £200,000 for non-pecuniary suffering, divided as to £125,000 for “the consequences of imprisonment”, £20,000 as “a moderate compensatory element in relation to the conduct of the investigation” and £55,000 for psychiatric illness; and a sum in the region of £470,000 for pecuniary loss, of which £143, 497 was attributable for past loss of earnings, less £37,158 saved living expenses.

Michael Hickey’s legal representatives similarly divided his claim for suffering into non-pecuniary suffering and pecuniary loss, and sub-divided the former similarly to the claim of Michael O’Brien, though slightly less elaborately, namely: 1) loss of liberty; 2) misconduct of the police; 3) damage to reputation/character; and 4) personal injury (psychiatric damage). Lord Brennan awarded him a total of £250,000 for non-pecuniary suffering (before a reduction of 20% for criminality), comprising £140,000 for “all factors”, £35,000 for aggravating features of the case, £75, 000 for psychiatric illness, and a substantial figure for loss of earnings less 25% for saved living expenses.

Vincent Hickey’s legal representatives divided his claim into non-pecuniary suffering and pecuniary loss, and sub-divided the former into the same four heads as those for Michael Hickey, but added a fifth, a claim of failure by the prison authorities to provide him with adequate clinical care. Lord Brennan awarded him a total of £190,000 for non-pecuniary suffering (before a reduction of 25% for criminality), comprising £140,000 for “all factors” other than psychiatric illness, for which he awarded £50,0000, and a substantial figure for loss of earnings, less 25% for saved living expenses.

The legal representatives of all three men made further submissions to Lord Brennan in respect of his awards. However, Lord Brennan adhered to them, giving his reasons in a similarly reasoned addendum to each assessment.

The claimants sought judicial review of his assessments in the following respects: 1) he did not break down the award to Michael O’Brien of £200,000 for non-pecuniary loss further than he did; 2) he did not, in the case of Michael O’Brien and Vincent Hickey, consider and/or express in terms whether there should be an award of aggravated damages; 3) in the case of O’Brien, his overall award of £125,000 for the consequences of imprisonment was irrationally low; 4) his decision to deduct saved living expenses from the awards of loss of earnings; and 5) in the cases of Michael and Vincent Hickey, his deduction from the non-pecuniary element of their respective awards on the grounds of their criminality.

Maurice Kay J, on 16^th April 2003, upheld in part the claims for judicial review, holding that: 1) paragraph 5 of the Home Office Note required Lord Brennan to apply relevant common law principles in the assessment of compensation whenever they are clear and analogous; 2) Lord Brennan had erred in failing to break-down that part of the non-pecuniary loss award for “the consequences of imprisonment” “or for “all factors”) as required by analogous common law principles; 3) he had erred, in the claims of Michael O’Brien and Vincent Hickey, in failing to apply common law principles to determine whether an award of aggravated damages was appropriate or in failing to explain why he had not made such an award; 4) in the case of Michael O’Brien, the figure for loss of liberty should reflect its duration on a proportionate but not arithmetically extrapolated basis, but it could not be said whether the award of £125,000 for the consequences of imprisonment was irrationally low until Lord Brennan had further broken down the figure; and 5) he had erroneously believed he was applying common law principles in making a deduction for saved living expenses from the awards for past loss of earnings. However, the Judge rejected Michael and Vincent Hickey’s claim that deductions for criminality could not be made in respect of their overall non-pecuniary loss.

In the result, the Judge, as I have said, quashed those parts of the awards in respect of which he held Lord Brennan had erred and ordered him to reconsider and give reasons in accordance with his, the Judge’s, judgment.

As Maurice Kay J observed early in his judgment, the crucial provision in the Home Office Note is the first sentence of paragraph 5, which, for convenience, I repeat:

“In reaching his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs.”

Lord Brennan, the Judge and this Court have been confronted by two competing approaches to the effect of those words. The first was that, for which the claimants, through Mr Nicholas Blake QC, for Michael O’Brien, and Mr Philip Engelman, for the Hickeys, contend. It is that, wherever there is an analogous principle or rule governing the assessment of damages for a particular civil wrong, for example in claims for damages for personal injury, malicious prosecution, false imprisonment and the like, an Independent Assessor must apply it. The second, for which Mr Robin Tam, for Lord Brennan, contended, is that it does not require direct application of legal rules for the assessment of damages in respect of independent analogous torts. He suggested that the analogy has to be taken with assessment of damages for civil wrongs at a much broader level, namely that the aim of damages is to put a claimant into the position in which he would have been but for the civil wrong and that money cannot truly reflect the extent of a non-pecuniary loss; it is simply the best that a court can do.

I should at this point say something about the history of Sir David Calcutt’s approach to the task of assessment of compensation for non-pecuniary suffering under the scheme. During most of his time as Independent Assessor he adopted the approach that Lord Brennan was to adopt in these claims, namely that, though enjoined by the Secretary of State, in paragraph 5 of the Home Office Note, “to apply principles analogous to those governing the assessment of damages for civil wrongs”, he did not break down his awards. His approach was as he expressed it in the passage from his assessment in Mattan, which I have set out above in paragraph [8], and part of which, for convenience, I repeat:

“… an Assessor, whilst having regard to the level of awards made in respect of various torts, should seek to make one overall award which reflects the overall wrong which has been done”.

However, in a later review, in July 2001, of a group of his earlier awards in relation to “the Birmingham Six”, Hill & Ors, Sir David took a different view, clearly influenced by a number of (then) recent decisions of the Court of Appeal giving guidance for judicial directions to juries on the assessment of damages in cases of false imprisonment and malicious prosecution, notably Thompson v Commissioner of Police for the Metropolis [1998] QB 498 and Commissioner of Police for the Metropolis v Gerald (unreported, 10^th June 1998). In his revised assessment in Hill & Ors he referred to the “analogous principles” requirement in paragraph 5 of the Home Office Note, observing, before turning to issues of aggravated damages and their break-down, that “the problem, in practice, is to determine what those principles are”:

“2.5

… 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 … Gerald; and, accordingly, I accept that I should now follow the suggested practice. …

…

2.7.

…Whilst it is correct that I am concerned with ‘compensation’ rather than with ‘damages’, I accept that I should nevertheless concern myself with ‘damages’ and with the various heads of damages. Similarly, I should consider whether aggravated damages would have been awarded (in addition to basic damages) had the claim been a claim in court for damages.

”2.8 …The decision of Lord Woolf MR in Thompson, with regard to proportionality, now appears to be more restricted than I had at first supposed. Although arguably wider, it is, I think, reasonably plain that Lord Woolf’s relevant observations concerning ‘proportionality’ were made with regard to the loss of liberty simpliciter – i.e. to the very fact of imprisonment – and not with respect to any other matter of ‘basic’ damage, still less of aggravated damage.

…

2.12

… I agree that an assessment of non-pecuniary losses must take into account all appropriate heads of damage; but the risk of overlap, duplication and double-counting does present an ever-real concern. At the end of the day, the proposed Assessment must be considered in the round, to see whether, taken as a whole, the Assessment appears to provide fair compensation for the miscarriage of justice which has occurred.”

With those considerations in mind, Sir David then broke down his revised assessments for non-pecuniary suffering to the following seven heads: loss of liberty simpliciter, misconduct, reputation, personal injury, psychiatric damage, conditions of imprisonment and injury to feelings/affront to dignity. Mr Blake, in his submissions on this appeal, has suggested a further head, namely loss of family life.

Lord Brennan, like Sir David Calcutt until he revised his assessments in Hill & Ors in July 2001, preferred the second, broader approach, much as Sir David had expressly articulated it in January 2001 in Mattan (see paragraph 8 above). The Judge, however, took the narrower approach.

This is how Lord Brennan, at paragraphs 4 and 16 to 19 of his assessment in the claim of Michael O’Brien, described the task of assessment as he saw it:

“4.

Assessment of compensation for non-pecuniary loss in cases such as this is complex. Relevant factors may include the deprivation of liberty, damage to reputation, the circumstances of imprisonment and their effect, and any psychiatric illness. Misconduct in the investigation and prosecution may be a relevant factor. The factors I have listed are not exhaustive. The conditions of imprisonment and the exclusion from family life caused by a long period of custody may well be significant in a particular case. Any or all of these factors may play their part. 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.

…

16.

… there are two areas of the law in England which provide some comparison, but the help to be derived is in my opinion limited. The most obvious comparative is an award by the High Court in cases of false imprisonment, which are often accompanied by wrongful arrest and malicious prosecution. The facts of each case differ widely. The Court of Appeal review in Thompson [[1998] QB 498] illustrates the range of award which the courts think appropriate in this area.

17.

The second area of analogy is compensation for personal injury. …

18.

I do not think libel cases are particularly helpful, following the recent Court of Appeal approach restricting the amount of award towards more conservative levels than had occurred in years past.

19.

The approach to assessing compensation in Mr O’Brien’s case must essentially be based upon its circumstances and its consequences for him. It is not possible to calculate the matter purely on a time basis, nor to extrapolate awards for short terms of false imprisonment as producing some annual multiplicand.”

Lord Brennan explicitly adopted the same approach in his assessment of the claim of Vincent Hickey; see, in particular, paras 8-10, and in his reconsideration of it in the addendum; see, in particular, paras 5 –10, 11, 12 and 16. He observed, at paragraph 9 of his original assessment that, while awards at common law for false imprisonment, for general damages in personal injury and in defamation fall to be considered, none could provide a determinative basis for assessment of compensation to a victim of miscarriage of justice. He made no such explicit observation in his assessment of Michael Hickey’s claim; and, in the detail of his calculation of that award, took what appears to be a largely “conventional” approach, drawing on a number of common law authorities on issues of quantum and deduction.

The Judge, as I have said, preferred a more particular level of the analogy with civil law principles. He said, at paragraph 14 of his judgment:

“… the meaning of paragraph 5 is not and is not intended to operate only at the level of abstraction for which Mr Tam contends. It is axiomatic that the words of the statute override the common law where they are inconsistent with it and that any specific prescription in the Note is to be given effect to, whether or not it is consistent with the common law. However, beyond those limitations, it seems to me that the purpose of paragraph 5 is to enjoin the assessor to apply relevant common law principles wherever they are clear and analogous.”

The Judge found support for this conclusion from a judgment of Kerr J in the Northern Irish case of ex parte Hegan (unreported: 7^th September 2000), on a challenge by way of judicial review to the adequacy of an award of compensation under section 133 in which the Northern Ireland Assessor had awarded compensation on the same basis as he had done for Hegan’s co-accused some years earlier notwithstanding development in the material case law since then. Kerr J said, at pp 10-11:

“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.”

Mr Tam, who appears again for Lord Brennan on this appeal, challenged Maurice Kay J’s reasoning, stressing, as had done to the Judge, the differences between awards of damages at common law and this statutory scheme. He said that common law rules of damages for different torts have their origin in the different policy interests that they protect and have been forged by adversarial litigation into working tools to give effect to and/or balance such policies. In contrast, this scheme embodies recognition of public responsibility for those who have suffered harm from miscarriages of justice, regardless of whether the victim is entitled to recover damages against the person or persons responsible at common law. In some cases there may be no comparable tort; in others there may be one or more comparable torts to which different rules for assessment of damages apply. For example, among torts that might often be thought to be relevant comparators in such a context, namely wrongful arrest, false imprisonment, malicious prosecution, negligence and deceit, there are differences about remoteness, causation and qualifying types of loss etc. Also, contributory fault will reduce damages for some torts, but not for others. Previous bad conduct will not normally reduce basic damages for any tort, as it may do for miscarriage of justice awards under section 133(4A). Specific rules, particularly in relation to negligence, may be modified from time to time for policy reasons, and sometimes by statute.

It follows, submitted Mr Tam, that the guidance an Independent Assessor can usefully and properly derive from the detailed rules of assessment of damages in specific torts is limited, especially where “the fit” between any hypothetical tort in the circumstance is loose or non-existent. He referred to Sir David Calcutt’s observation in his assessment in Mattan, at paragraph 6, that no single tort “is capable of reflecting comprehensively what a court might award in the case of a miscarriage of justice simpliciter” (see paragraph 8 above). He also mentioned the important, practical point that, as miscarriage of justice awards are confidential and not the subject, even in anonymous form, of published reports, it is not possible to build up a body of “jurisprudence” and/or comparables to set general levels of quantum for one or another form of suffering qualifying for assessment under section 133. Accordingly, he submitted, as he had done to the Judge, that the focus should be on two main principles of assessment that run through all torts. The first is that the aim should be to put the person being compensated in the position in which he would have been had he not suffered the wrong. The second is that, given the necessarily imprecise task of putting a monetary value on non-pecuniary loss and suffering, especially where there are a number of separate but overlapping heads of claim, to fix on an overall sum is the best that the court can do. In short, subject to those two broad principles of general application to all torts, an Independent Assessor should keep in mind that his task, as described in the opening words of the Home Office Note, is to assess compensation for “the hardship caused by a wrongful … conviction and notwithstanding that the circumstances may give no ground for a claim of civil damages.”

Mr Blake and Mr Engelman supported the Judge’s ruling that the effect of paragraph 5 of the Home Office Note is to enjoin the Independent Assessor to apply relevant common law principles wherever they are clear and analogous. They argued that, to confine its effect to the two very broad concepts for which Mr Tam contended, left it with no meaning, for those concepts are already implicit in the statutory obligation on the Secretary of State to pay “compensation”. And without any such additional meaning, the Note and, in particular paragraph 5, would provide very little useful guidance as to the principles claimants should have in mind when preparing their claims or for the Assessor in evaluating them. The outcome, they submitted, would be uncertainty giving rise to irrationality, inconsistency and unfairness, something that the appointment of Independent Assessors experienced in the assessment of common law damages was designed to avoid. They also prayed in aid, as the Judge did, the judgment of Kerr J to like effect in Hegan.

The main thrust of their complaints about these assessments was that they were insufficiently reasoned, and they supported the Judge’s order requiring Lord Brennan to re-consider his overall assessments for non-pecuniary suffering and its make-up by reference to the requirements of section 133(1) under the headings claimed in each case, namely more on the lines of Sir David Calcutt’s approach in Hill & Ors, though not necessarily to its precise level of detail (see paragraph 28 above). Such an approach, they said, was a necessary aid to consistency for the person holding the office of Independent Assessor, Mr Blake observing that the scheme requires payment for suffering according to law, not according to the length of the foot of the person who, for the moment, happens to be the Assessor.

So, taking Michael O’Brien’s claim as an example, Mr Blake submitted that the break-down should include a sum for the period of “loss of liberty simpliciter”, regardless of all the accompanying elements of suffering. There should then be a separate figure for each of those elements, for example, conditions of imprisonment, justified protests of innocence engendering disciplinary response, injury to feelings, etc.

There are two basic considerations in this debate. The first is the closeness of “the fit” between the nature of the claim or claims under the scheme and any civil law claim or claims that are candidates as sources for analogous principles of assessment. The second is, if there is such “a fit”, the clarity and/or precision of such analogous principles as tools or guides for assessment of scheme compensation. I deal with the second consideration first.

It is implicit in the exercise of assessing damages for non-pecuniary suffering and loss at common law, as it is in the assessment of compensation of non-pecuniary suffering under the scheme, that fixing on a monetary sum for the purpose is, by its very nature, an artificial and highly imprecise tool. It is a barely respectable intellectual exercise. Nevertheless, overlapping imperatives of fairness, consistency and equality of treatment have driven common law courts to attempt, in various ways, guidance of a more or less general nature according to circumstantial needs, to strive to those ends. They may not always be achievable, or, on the available means of comparison of the facts of each, readily identifiable. Two different tribunals may deal with like cases in ignorance of the approach of the other, or one tribunal may simply take a permissibly different view from the other. They may do so at different times, each subject to the law as it was at the time.

Even with the guiding and moderating role of the Court of Appeal to overcome or mitigate some of these difficulties its contribution, in particular, to consistency and equality of treatment, is necessarily of a general nature and cannot intrude too prescriptively in areas that are highly fact-sensitive, not only as to a just award of damages for non-pecuniary loss, but also as to the means by which that award is calculated. It is a frequent conundrum in the assessment of common law damages whether, because of the nature and circumstances of the claim, to build up to an overall figure from a series of separately identified and quantified constituents, or whether to look for an overall figure, taking into account, but not necessarily separately quantifying, different elements of the claim.

The former, where possible given the nature of the claim(s) and the facts, is, on the face of it, desirable, provided that the decision-maker at the end of the exercise checks and, if necessary, moderates his overall figure to allow for overlap and double-counting. The latter - taking an overall figure - is no doubt less intellectually respectable because of the inherent artificiality of fixing on a single monetary figure for a mix of non-pecuniary loss and suffering. But, where there are overlapping claims on the facts and on the law, it may be the only way to go about it. And, the civil law decision-maker, no less than one under the scheme, 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.

Now that is the somewhat uncertain civil law terrain at which paragraph 5 of the Home Office Note directs the Independent Assessor to look for analogous principles to guide him in his sometimes similar, but often very different, task. It is a terrain with which those practised in the art - not science - of assessment of common law damages are well familiar and to which they respond in a pragmatic way as each individual case requires. It is to such persons that the Home Office looks for appointment as Independent Assessors under this scheme.

As to the other basic consideration – the closeness of “the fit”, it is true that there is common law guidance of the sort attempted by the Court of Appeal in Thompson and Gerald, suggesting tariffs and the make-up of damages in malicious prosecution and false imprisonment cases, or as to levels of damages in personal injury cases, and for more straightforward issues of law, such as what may and may not be deducted from awards of damages. In such cases, it may be possible for the Independent Assessor to find “a good fit” with the manner of treatment of a similar claim in a particular tort or torts. But in the critical area of how, in any given case, he should approach and reason his assessment for loss of liberty and its various consequences in any given case - which is what these appeals are mostly about - resort to “analogous principles” may often not yield very much. There are also the many examples to which Mr Tam referred of technical civil law rules as to what may or may not sound in damages, remoteness, causation, qualifying deductions etc. that do not necessarily have any place in this scheme. I take as just one illustration, that where an Independent Assessor might consider it just to include in an award a sum for example, injury to feelings, for which paragraph 5 of the Home Office Note expressly provides, in circumstances where there is no psychiatric injury, a form of suffering not recognised as sounding in damages at common law.

There are two further difficulties. The first, on which Mr Tam placed emphasis, is the confidentiality of awards under section 133, thus hindering the achievement of some measure of consistency achievable in common law awards. The other, urged by Mr Blake and Mr Engelman, is the need, in any event, for some breakdown to enable a claimant and a court, in any subsequent common law claim by him arising out of the same facts, to deal with possible issues of double recovery.

As to consistency of awards under the scheme, their confidentiality is only a partial barrier to its achievement in the sense that delivered awards are presumably available to the Independent Assessor of the day, as an aid to his consistency and equality of treatment, when considering new claims. But unless, as in this case, past claimants waive that confidentiality, new claimants have no corresponding access to any body of Independent Assessor “jurisprudence” or practice in the make-up of awards on which they can base their expectations and to assist them in framing their submissions in support of their claims.

As to identifying the boundary between claims under the scheme and any common law claims arising out of the same facts – the problem of possible double-recovery - it is clearly desirable that an Independent Assessor should attempt, whether or not by analogy with common law principles, as much of a breakdown as the nature and the circumstances of the claim(s) before him permit.

It follows, in my view, that, on this central issue as to the meaning in paragraph 5 of the application of analogous principles, the ruling of the Judge and the arguments of Mr Blake and Mr Engelman are to be preferred to those of Mr Tam. In such an inherently fact-sensitive exercise of assessing compensation under the scheme, the extent to which, in any individual case there will be a close enough “fit” for recourse to analogous principles must be primarily a matter for the judgment of the Independent Assessor. So also must be the precise mechanism of his identification of an overall figure for compensation for non-pecuniary suffering and of its make-up necessary to explain and justify his award. The analogy enjoined by paragraph 5 is not so general that it must be capable of application to all civil wrongs. Paragraph 5 does not say that, and if it did, it would be meaningless and add nothing to the meaning of compensation for which section 133 already provides, namely the best that money can do to put the claimant in the position he would have been but for the suffering for which he is to be compensated. In my view, paragraph 5 clearly indicates that, where the facts permit it and the putative analogous civil law principles are sufficiently analogous and clear, an 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 Mr Blake 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. Assessment of damages by reference to common law principles should not be hard to evaluate for most such “cognate civil wrongs”, as the Judge called them. And if and where some rule applicable to a particular tort may be difficult, or require proportionate application or other adaptation in the circumstances of a miscarriage compensation claim, then, as the application of principles enjoined by paragraph 5 of the Home Office Note is only by way of analogy, an Independent Assessor should feel free not to follow, or to modify, it as justice requires, duly explaining his reason for that departure.

Accordingly, I agree with the Judge that the Independent Assessor should, save where the circumstances of the case before him render it unjust or otherwise inappropriate, apply principles for the assessment of damages for loss at common law whenever such principles are clear and capable of application by analogy. In relation to non-pecuniary heads of loss, this will usually involve consideration of principles of the assessment of damages for malicious prosecution and/or false imprisonment. Where the facts and/or the law do not permit such analogy, the Independent Assessor should say so and why. He should also strive, in the absence of such guidance, to explain to the claimant how he has reached his award, giving as much information as to its make-up as the nature of the claim and the facts permit.

Each of the three claimants seeks to uphold the Judge’s orders quashing Lord Brennan’s assessment for having wrongly failed sufficiently to consider and break down his award into a number of discrete heads of claim. Although the issues of breakdown and aggravating features have been pleaded and argued in the appeal as if they were distinct issues, they are really the same, namely as to the extent to which an Independent Assessor should distinguish in his non-pecuniary award between so-called “loss of liberty simpliciter” and its consequences, all of them, in one way or another, aggravating it. As part of that issue Michael O’Brien and Vincent Hickey complain with specific reference to Lord Brennan’s failure to identify in his assessments of their awards any discrete figures for aggravating features.

For the purpose of considering this issue, I should recall that section 133 (4A) of the 1988 Act sets out in the broadest terms the matters for which it provides compensation, namely “suffering, harm to reputation or similar damage”. Paragraph 5 of the Note gives a little more, guidance, when referring to non-pecuniary loss, stating that “any or all of the following factors may be relevant according to the circumstances”, namely “[d]amage to character or reputation; hardship, including mental suffering; injury to feelings and inconvenience”. And, as I have indicated, two of the factors to which paragraph (4A) particularly requires the Assessor to have regard, are (a) “the seriousness of the offence of which the person was convicted …” and (b) “the conduct of the investigation and prosecution of the offence”, clear references to potentially aggravating features of the miscarriage of justice in question.

As I have noted, in the case of Michael O’Brien Lord Brennan included in his award a separately identified figure of £20,000 as “a moderate compensatory element in relation to the conduct of the investigation”, which related to breaches of the Police and Criminal Evidence Act 1984 involving the conduct of the police interviews and treatment of him in the police station. This is how Lord Brennan explained his separate treatment of this matter at paragraph 7 of his assessment:

“… Such matters particular to this conviction provide material upon which to conclude that an aggravating feature of this case was the oppressive manner in which this investigation may well have been conducted. In Thompson, the concept of aggravated damages embraced not only oppressive behaviour, but behaviour which was the product of ‘malicious motives, spite or arrogance’ and ‘high handed, insulting, malicious’ conduct. It is essential to note that a further award at common law for aggravated damages for such matters is only to be made if not to make it ‘would result in the plaintiff not receiving sufficient compensation for the injuries suffered if the award were restricted to a basic award’”

However, Lord Brennan went on to refer to other matters that, on the face of them, could also be candidates for aggravating features:

“10.

An applicant such as Mr O’Brien … will … be entitled to compensation for injury caused to his feelings. This will include loss of dignity, humiliation, frustration, helplessness and despair at the failure of the criminal justice system.

11.

Mr O’Brien is also entitled to compensation for harm done to his standing in the community. An applicant is entitled to expect a component in the compensation to do something to counteract such sentiments.

In the case of Michael Hickey he awarded, at paragraph 10 of his assessment, a separate figure of £35,000 as “a moderate uplift for aggravating features of the case following the approach of the court in Thompson”.

In the case of Vincent Hickey, he did not expressly award any sum for aggravating features, but nor did he at paragraphs 8-9 of his assessment, expressly or otherwise clearly disclaim inclusion of any element for such features in fixing, on the sum for non-pecuniary suffering of £140,000, after allowance of a further £50,000 for psychiatric illness:

“8.

Taking into account loss of liberty, the conditions of imprisonment, and his supposed association with a notorious murder whilst a prisoner, I must also have regard to his psychiatric illness, and past heroin addiction, which I accept was a consequence of his wrongful detention.”

Later, at paragraph 18 of the addendum to his assessment, he did expressly disclaim any inclusion in his award of a sum for aggravating features. However he gave only a partial explanation for distinguishing in this respect between Vincent’s claim and that of his cousin, Michael, in failing to consider, whatever the basis for Vincent’s wrongful loss of liberty, whether there were any, and, if so, what discrete aggravating features of it:

“I have not made an award for aggravating factors in Vincent Hickey’s case. His treatment by the Court of Appeal puts him in a wholly different position to Michael Hickey and James Robinson – se page 374 of the judgments, and their assessment of his personality pages 354/5. He succeeded on appeal only on the alibi ground. I find no grounds for making an award of aggravating factors in his case.”

Each of the three claimants, on receipt of his assessment, was dissatisfied with the amount awarded and the manner of its make-up, and instructed his legal representatives to make further representations to Lord Brennan on a number of matters. In each case one of the complaints was that he had not sufficiently explained or broken down “the heads of loss” in the part of his award that related to non-pecuniary loss. Lord Brennan, in an addendum to each of the assessments, rejected that complaint. However, as I have indicated, he cautioned against treating differently expressed species of suffering as if they were discrete heads of common law loss, where, as is often the case, there is much overlap between them. Taking the claim of Michael O’Brien as an example, he said that he did not regard the “factors” mentioned in paragraph (4A) of section 133 or in paragraph 5 of the Note as “heads of loss”:

“8.

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 then went on to agree with the general proposition of Sir David Calcutt in Hill & Ors, at paragraph 2.12, which we have set out in paragraph 28 above and part of which, for convenience, I repeat:

“… At the end of the day, the proposed assessment must be considered in the round, to see whether, taken as a whole, the assessment appears to provide fair compensation for the miscarriage of justice which has occurred”.

However, consistently with the way in which he had structured his award, Lord Brennan admitted of two possible qualifications to that general proposition, depending on the circumstance, namely to quantify separately a sum for an aggravating feature and, because it attracts interest, a sum for a clearly established significant personal injury or psychiatric illness capable of reasonable quantification.

In an identically worded passage in his addendum to each of the Hickey assessments and a slightly truncated version of it in the O’Brien assessment, Lord Brennan expressed his approach to the issue of aggravating features:

“16.

I do not accept that this compensation scheme should operate on the basis that misconduct in relation to police investigation or prosecutions creates an entitlement to ‘aggravated damages’ to be awarded 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 treat 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 proportionate to the rest of the award.”

He then, in the same paragraph, expressly dissented from the view of Sir David Calcutt as expressed in Hill, which he identified as a straightforward application of common law aggravated damages, save for any penal element, to the statutory scheme and expressed the view that that neither section 133 nor any concept of fair compensation requires such an approach, because, by reference to paragraph 5, there was no “analogous principle”.

“… I do not think Section 133 nor any concept of fair compensation requires this approach. I consider that paragraph 5 of the Home Office Note stating that the Assessor will apply ‘principles analogous to those governing the assessment of damages for civil wrongs’ is consistent with my approach. [Lord Brennan’s emphasis]

17.

It is argued by the applicant’s legal adviser that the aggravated damages approach in Thompson should apply to awards under this scheme, and that the awards to the Hickeys should be consistent with Sir David’s award to Robinson of £172,000 for aggravating factors.

I do not agree that the Thompson approach to aggravated damages should be applied inflexibly to awards under this scheme. Sir David and I agree that the Thompson guidance on award for short term of imprisonment does not lay the basis for compensation under this scheme for long term imprisonment. The Court of Appeal could not, and in my view did not, expect their decision to be used as the basis of awards under this scheme in this way.

Similarly I cannot imagine the Court of Appeal would expect its approach to aggravated damages in relation to relatively moderate awards of general damages to be applied to awards under a scheme such as this especially when non-pecuniary loss awards reach six figures.

…

While the principle of compensation for aggravating factors under the scheme may be appropriately applied in individual cases, the quantification of it must be proportionate and in keeping with the approach set out in paragraph 16 above. And of course each case must be considered on its own facts. As to quantification Thompson gives some guidance as to the approach – see point (8) at p 775 – to aggravating factors. I do not regard the Court’s reference to ‘guidelines’ on figures or multiples as setting out the approach that has to be followed under the scheme.

….

I do not interpret S.133, or the Home Office notes, to intend a system of compensation with a ‘basic’ award and, if appropriate an award of ‘aggravated damages’ applying Thompson.”

The Judge, in allowing much of the appeals against Lord Brennan’s awards, allied himself with Sir David Calcutt’s view in Hill & Ors that recent case-law of the Court of Appeal, requiring more explanation of the make-up of awards of damages, applied equally to miscarriage of justice awards. He said, at paragraph 21 of his judgment:

“… an analogous principle which the independent assessor is obliged to apply … is that derived from Thompson. I do not accept that it is relevant only to the award of damages by juries. It is a principle which is applied by the Court of Appeal itself when quantifying damages: see, for example Gerald and Goswell v. Commissioner of Police for the Metropolis (unreported, 7 April 1998). …. These developments reflect the current jurisprudence in relation to the giving of reasons by judges generally and its rationale: see English v. Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Mr Tam [counsel for the Assessor] suggests that this does not apply to the independent assessor because he is not sitting as a judge. However, he is assessing compensation, often of considerable magnitude, and he is doing so by reference to analogous principles. Moreover, if one wants further evidence of legal development in this or a not dissimilar context, one need look no further than the approach to damages for injury to feeling and aggravated damages in discrimination cases and the recent decision of the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No 2) [EWCA] Civ 1871. In the face of these developments – and I emphasise Thompson – there is an analogous principle and it was a legal error for Lord Brennan not to recognise it or to claim the freedom to depart from it.”

The Judge then rejected the suggestion that the move towards a greater break-down of awards would have an inflationary effect and lead to double-counting, praying in aid an observation by Mummery LJ in Vento, at paragraph 68,that courts should still keep an eye on the overall magnitude of an award and avoid double-counting. And he concluded, at paragraph 23:

“To require the assessor to apply the principle has all the benefits that flow from enhanced reasoning – transparency, assurance that everything has been dealt with, a basis upon which an informed decisions can be take as to whether or not to challenge the award and so on. Moreover, in the present context there is another matter which seems to me to be of some importance. The scheme under section 133 expressly contemplates the possibility that the applicant may have recourse to concurrent or subsequent civil proceedings arising out of the same events. If he does so (and at least one of the present Claimants is doing so), it will be very difficult if not impossible for the trial judge to know what has already been awarded in respect of a contentious item unless the Thompson principle is applied. There is therefore a separate policy reason to support the principle.”

The Judge took as his starting point that the award to Michael O’Brien of £125,000 for “the consequences of imprisonment”, included something in respect of injury to feeling and damage to reputation, as Lord Brennan’s reasoning in his assessment had made clear. However, he said that it was not clear whether and, if so, to what extent that figure included anything for ‘aggravating features’ over and above injury to feeling and reputation. All of which, he said, left him unable to form a view as to its rationality:

“30 ….(1) unless and until it is further itemised, it cannot be said that whatever part of £125,000 represents the long-term loss of liberty is irrational; (2) the failure to provide at least some breakdown of the £125,000 is legally flawed for the reason I gave in relation to Ground 2; (3) the figure for loss of liberty should reflect its duration on a proportionate but not arithmetically extrapolated basis; (4) either there should be an element in relation to aggravating features or the absence of one should explained on a more forthcoming basis than this not being an appropriate case; and (5) in my judgment, there is an analogous principle derived from Thompson to the effect that an aggravated element arises when, because of aggravating features, a basic award alone would not provide fair compensation and it is legally erroneous to refuse to apply that principle. Accordingly, O’Brien succeeds on this ground of challenge.”

The Judge’s acceptance of Lord Brennan’s reasoning for his award of a specific figure for aggravating features generally in the case of Michael Hickey and for his express refusal to award such a figure in the claim of Vincent Hickey are consistent with his unease about the uncertainty in the award to Michael O’Brien as to what was and was not intended to cover such features. As to the award of £35,000 to Michael Hickey as “a moderate uplift for aggravating features”, he rejected Mr Engelman’s submission that the award was irrationally low, based on a passage in Thompson, at 546F, that “in the ordinary way, we could not expect the aggravated damages to be as much as twice the basic damages”, and said, at paragraph 32 of his judgment:

“… that seems to me no more than a ceiling in relation to the previously stated principle that it is ‘not possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case’. Looked at within the four corners of Lord Brennan’s assessment, I do not consider that £35,000 is irrationally low. In my judgment it is a permissible figure. I suspect that what my irk Michael Hickey is the fact that James Robinson received an aggravated award of £172,000 from Sir David Calcutt. For the reasons which I shall explain when I come to consider Ground 6, the deduction for ‘criminality’, I do not consider that Michael Hickey can invoke the Robinson award so as to require Lord Brennan to make an award which he permissibly considered to be wholly excessive. Accordingly, I do not consider that Michael Hickey can sustain this ground of challenge.”

And as to Lord Brennan’s express exclusion in Vincent Hickey’s case from his total figure of £190,000 for non-pecuniary loss, of which he specifically attributed £50,000 to psychiatric injury, the Judge simply observed, at paragraph 31 of his judgment:

“It is my interpretation of the award that the £140,000 represents loss of liberty and nothing else. If I am right about that, there is no need for a further breakdown. If I am wrong, then there is.”

It is not altogether clear what the Judge envisaged Lord Brennan should attempt by way of greater breakdown on remission of those aspects of the claims that he quashed, other than to pay closer attention to the guidance in Thompson and to say that he should undertake a greater breakdown than he has done. I do not read his judgment as an endorsement of the degree of particularity as to breakdown adopted by Sir David Calcutt in Hill & Ors, at least not as a generality. The Judge’s order was simply that Lord Brennan should “re-assess the amounts of compensation in respect of” “non-pecuniary loss other than psychiatric illness” and “in respect of past earnings” “in accordance with the terms of the court’s judgment”.

Mr Tam prefaced his submissions on this issue, as he had done on the central question as to meaning of analogous principles, by stressing the distinct nature of the entitlement to compensation recoverable under the scheme from that in actions for recovery of damages for civil wrongs. He pointed to the significant procedural and practical differences in recovery of compensation under the scheme and of damages at common law. Under the scheme the process of assessment of compensation is an administrative one. The Independent Assessor has limited tools for independent investigation of the factual basis for the claim. Unlike the adversarial litigation in which common law claims are presented and tested, there is no opponent to test the claimant’s case, by cross-examination or otherwise, or to advance a positive contrary case. As a result the Assessor’s task and the manner in which he builds up his assessment is necessarily less precise than that of his judicial counterpart considering well-defined civil wrongs and appropriate heads of damages under them.

Mr Tam said that, as a result, an Independent Assessor is in a particularly weak position to investigate fully any allegations that a claimant may make about aggravating features of his case. There is no “other side” to confirm or refute such allegations; whilst there may be some documentary material, such allegations often cannot be properly tested. In short, it is an exercise far removed from that of the courts in examining whether, on the evidence before them, it is appropriate to award aggravated damages. In the circumstances, submitted Mr Tam the Assessor should be cautious about identifying aggravating features for disbursement of public funds on the basis of unsupported and untested allegations of the claimant. It is for that reason, he said, that section 133 (4A) simply requires the Assessor to “have regard to … (b) the conduct of the investigation and prosecution of the offence” (my emphasis).

Mr Tam conceded, however, that the position is different in those cases where there is clear evidential support for a claim in respect of aggravating features and/or for example, equivalent findings or conclusions of the Court of Appeal, Criminal Division or of judicial inquiry of disciplinary authorities. In such a case, he said, the Assessor’s duty under section 133(4A)(b) is to mark such aggravating features in an appropriate way, as he did in the case of Michael Hickey.

Thus, Mr Tam acknowledged that, depending on the individual circumstances giving rise to a claim, there may be scope for some breakdown of elements of it, whether or not described as aggravating features, as Lord Brennan did in varying degree in these cases. However, he submitted that the detailed break-down adopted by Sir David Calcutt in Hill & Ors, which the Judge appears to have favoured in this case, was wrong because different policy considerations apply in tort cases, and also because the greater the breakdown, the greater the potential for overlap and double-counting.

Mr Blake and Mr Engelman stressed that at this appellate stage they were not making a rationality complaint about the size of Lord Brennan’s awards for non-pecuniary suffering, but one of insufficiency of reasons. Thus, in relation to the award to Michael O’Brien of £200,000, Mr Blake submitted that the figure of £125,000 attributed by Lord Brennan to “the consequences of imprisonment”, in addition to reflecting compensation for loss of liberty for the best years of his life, seemingly included some elements for his conditions of imprisonment, damage to his reputation and injury to his feelings. But, he complained, it was not apparent from Lord Brennan’s reasoning to what extent each of those elements contributed to that figure, so as to indicate whether, as a whole, the figure of £125,000 represents fair compensation “for the consequences of his imprisonment”. He stressed the likely importance of such awards to those released from long periods of imprisonment, the lack of any avenue of appeal from them other than by way of judicial review, and the difficulty for any claimant dissatisfied with the quantum of his award of determining whether it is judicially reviewable. Finally, he pointed to the Judge’s declared inability to determine whether the award was irrational unless and until some break-down were provided.

Mr Blake and Mr Engelman did not necessarily argue for a breakdown in the detail adopted by Sir David Calcutt in Hill & Ors. Their approach was that, even if there is no identification and assessment of any the seven or so aggravating features referred to by Sir David, it would be sufficient for there to be a separate categorization of compensation for “loss of liberty simpliciter” and of an overall figure for aggravating features. They were not seeking to force principles of assessment of damages in the law of tort on this sui generis scheme, simply principles analogous to those applied in tortious claims, so as to identify, at a level of detail appropriate to the facts and the claim, sums intended to compensate a claimant for “each aspect of injustice”, its severity of extent and its duration.

Mr Blake supported the reasoning of the Judge in his criticism of the absence of any explicit provision by Lord Brennan for aggravated damages in Michael O’Brien’s claim. He submitted that the obligation to apply analogous common law principles in respect, particularly, of the most cognate torts of malicious prosecution and false imprisonment, clearly required him to consider as a separate matter whether to award aggravated damages and, if so, how much, as indicated in Thompson, at 516B-E. He said, as the Judge did, that Lord Brennan’s findings as to injury to feelings, including loss of dignity, humiliation and despair at the failure of the criminal justice system clearly raised an issue as to aggravating features, quite separately from the manner of conduct of the investigation in respect of which he awarded £20,000. He said that Lord Brennan should have indicated whether his assessment of £125,000 included an element for aggravating features and, if not, why not.

Mr Engelman also sought to uphold the Judge’s judgment and reasoning on this issue. Further or alternatively, he submitted, in rehearsal of arguments in a Respondent’s Notice, that Lord Brennan failed, contrary to his common law duty to give adequate reasons for his award, as under-pinned by Article 6 of the European Convention of Human Rights, and to break down that part of his award for “the consequences of imprisonment” so as specifically to address the elements in the claim for aggravating features.

It is plain from the three awards that Lord Brennan’s stance was not one of insistence on a single global award for non-pecuniary suffering with no breakdown at all. He has broken down each of these three claims to an extent, depending on the differing nature of various forms of suffering claimed. In each case he has made a broad division between non-pecuniary and pecuniary suffering, the former, which he identified in the claim of Michael O’Brien as “for the consequences of imprisonment”, and in the claims of the Hickeys as “for all other factors than psychiatric illness”. In each case he has broken out of the total for non-pecuniary suffering, figures for personal injury in the form of psychiatric injury that are readily identifiable by analogy with well-established common law principles and scales. And in the claims of Michael O’Brien and Michael Hickey, he has also identified as part of the total for non-pecuniary suffering, discrete figures for, respectively, “a modest compensatory element in relation to the conduct of the investigation” and “aggravating features of the case”.

As I have said, it is not clear what, if any, “principle”, the Judge had in mind in remitting this issue for reconsideration by Lord Brennan, other than that he should apply analogous principles to those in malicious prosecution and/or false imprisonment claims, namely those derived from Thompson and Gerald, and provide more of a breakdown than he has done. If all he had in mind was the exercise with which Mr Blake and Mr Engelman appear to be content, namely separate assessment of a figure for loss of liberty simpliciter and of an overall figure for aggravating features, Lord Brennan has already effectively provided a starting point in the case of Michael O’Brien by identifying the sum of “£20,000 for “conduct of the prosecution”. But it still not clear from his award what, if any and to what extent, other aggravating features are reflected in his overall award £125,000. Apart from providing some cross-check for Lord Brennan, the claimant and any court reviewing his award as to its adequacy, there is the practical point mentioned by the Judge that, in the event of any civil claim, the court would need to know the respects in which he had already been compensated in assessing his recoverable damages, if any, at common law.

In my view, this is an issue on which the Court should not be unduly prescriptive or attempt more than the broadest guidance; it is for an Independent Assessor to consider each claim and the manner of its make-up on its own facts. Whether and to what extent there should be a detailed breakdown of individual elements or aggravating features of the sort adopted by Sir David Calcutt in Hill & Ors must largely depend, as Mr Blake acknowledged in argument, on how self-contained they are. And that is so whether or not any of those elements and/or features are ones to which analogous principles of civil law can be applied. Where there is possible overlap, aggregation of the award for a number of aggravating features may, as a matter of practicality and common sense, be unavoidable. Different circumstances will require different approaches and a greater or lesser degree of particularity.

There are, however, some broad objectives that an Independent Assessor should keep in mind when fashioning the make-up of any assessment.

The first is to explain as well as the circumstances permit how he has reached his overall award, including where practicable its make-up as between different elements. As I have said, the starting point, the Secretary of State’s requirements in paragraph 5 of the Note for application of “principles analogous to those governing the assessment of damages for civil wrongs”, would have no content if it did not apply to principles applicable to the assessment of damages in the most cognate civil law wrongs of malicious prosecution and false imprisonment. In such cases, fairness, whether regarded simply as a well-established requirement of the common law or also as burnished by Article 6 ECHR, carries with it requirements of explanation and, thus aided, consistency. Those are the qualities to which the Court of Appeal gave voice in Thompson and Gerald. Though, they were prompted in the particular instances by the need for judges to guide juries, they were clearly designed also as guidance to judges when deciding such cases without a jury. (see Thompson, per Lord Woolf MR, as he then was, at 513H; and see e.g. Washington & Ors v The Commissioner of Police for the Metropolis (unreported - 31^st January 2003), per HHJ Michael Dean QC, at 41-43 of the transcript). All this is of a piece with the recent shift, in part prompted by the advent of Article 6 ECHR to our system, for judicial and quasi-judicial bodies to give more by way of reasons for their decisions than many formerly did. See English v Emery Reimbold & Strick Ltd [2002] 3 All ER 385, CA, at paras 6 –15;see also Vento v Chief Constable of West Yorkshire [2002] EWCA Civ 1871 in which the Court, at paras 47-68, gave guidance to employment tribunals on the assessment of damages for injury to feelings and aggravated damages in discrimination cases.

Now, it is true that the scheme is, in its form of procedure, more administrative than judicial, but the importance of the issues at stake, at the centre of which is the application of judicial expertise in remedying of a grievous wrong, seem to me to be equally deserving of the undoubted benefits of an adequately reasoned decision, namely: 1) to focus the Independent Assessor’s mind on the relevant statutory criteria, guidance and principles of law on the make-up of his awards before and when considering their totality; 2) to enable the claimant to know on what basis his claim or parts of it, have been accepted or rejected: 3) to enable him to determine whether he has grounds for challenging it by way of judicial review; 4) to encourage consistency in the quantum of awards and thereby fairness as between claimants with similar or different claims. see and cf. R v Civil Service Appeal Board, ex p Cunningham [1991] 4 All E R 310, CA, per Lord Donaldson MR at 318i-319g, per McCowan LJ at 322i-323b, and per Leggatt LJ at 325a-i (with all of whom Lord Mustill agreed in R v Secretary of State for the Home Department, ex parte Doody[1994] 1 AC 531 Hl at 564F).

The second broad objective is to provide a useful reference on such matters for himself and his successors to encourage and assist him and them in a consistent approach to the award of compensation. As to awards for so-called loss of liberty simpliciter (see paragraph 81 and 82 below), I do not consider that, even the noble aim of consistency, should drive the Court to suggesting that there should be a Thompson – like band or range for “conventional” awards. The effect of such loss, on its own, may, as the Court recognised in Thompson, vary considerably from person to person and his or her circumstances or experience. And, given the confidentiality of such awards, even if a respectable intellectual basis for it could be found and it were of assistance to the Independent Assessor of the day, it would not, as I have said, normally be available as a comparable or guide to claimants. Even where, as here, some recipients of awards have consented to their individual awards being made available for the purpose of comparison, others may not. Thus, as Mr Blake acknowledged, they would, at best, provide an “incomplete mosaic” for reference in search of consistency. However, a fully reasoned approach on analogy with that indicated in Thompson and Gerald, applied proportionately and, where appropriate adapted to the circumstances of the individual case and would be a useful aid to consistency. So also, in the case of personal, including psychiatric, injury would a reasoned regard to levels in personal injury awards at common law and the somewhat blurred distinction between, and relationship one to another of, basic and aggravated damages in civil actions.

The third broad, qualified objective 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. I refer to this as a qualified objective and preface the term “loss of liberty simpliciter” with the words “so-called” because 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 simple loss of liberty.

As Mr Tam observed in argument, neither the scheme nor the common law talks of an award of compensation for loss of liberty simpliciter. The scheme in section 133 and paragraph 5 of the Home Office Note provides, an entitlement to an award for “punishment” and “suffering” as well as the other elements set out in both instruments as consequences of loss of liberty. The same is true at common law. This penumbra between loss of liberty and its commonplace consequences barely distinguishable from it, and of more significant and/or particularly severe consequences is implicit in the judgment of this Court in Thompson, at 514E-517E,in its guidance given for awards of basic damages for “straightforward” cases of loss of liberty and additional awards of aggravated damages. See also, by way of example, Lunt v Liverpool City Justices, CA(unreported, 5^th March 1991), in which Bingham LJ, as he then was, commented at pages 3-4 of the transcript on the following passage from the judgment of Lawrence LJ in Walter v Alltools (1944) 61 TLR 39, at 40:

“… any evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man’s liberty, it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false.”

Bingham LJ’s comment was:

“I do not for my part doubt that that is a correct principle of law. …. [counsel for the claimant] is, in my judgment, entitled to submit that any form of imprisonment gives rise to a stigma and that stigma is not removed until the reputation of the imprisoned party is vindicated in an appropriate manner.”

It is, therefore, artificial to expect too watertight a distinction between “loss of liberty simpliciter” and aggravating features. Whether and where to make that distinction will depend on the circumstances of each case. Where aggravating features are significant and reasonably self-contained, it may make sense to break them up, either individually or in the aggregate from the “basic” award. Though, whether or not an Independent Assessor feels able to take that approach, he should be vigilant to guard against double-counting or failure to have regard to the cumulative effect of any aggravating features, whether separately assessed or not; see Thompson, 515C-516D, paras (4), (5) and (8)’

Fourth, and finally, where breakdown of an assessment is practicable, an Independent Assessor, when considering a figure for each separately identified element, as well as for the whole award for non-pecuniary loss, should look to the civil law in each case to see whether there is an analogous and clear principle that may assist him in his assessment. If there is he should identify and explain how he has drawn on it. If he considers that that there is no such comparable, he should say so, and, if it is not obvious either generally or in the particular circumstances of the case, he should explain why.

It follows from those general propositions that I consider that the Judge correctly took the view that: 1) in the claim of Michael O’Brien, a greater breakdown was required of the global figure of £125,000 “for the consequences of imprisonment”; 2) in the claim of Michael O’Brien, there should have been more explanation as to whether the award of £20,000 as “a moderate compensatory element in relation to the conduct of the investigation” represented the entirety of the award for aggravating feature or whether some, and if so, what such features were included, and in what amount, in the award of £125,000 for “the consequences of imprisonment”; and 3) In the claim of Vincent Hickey, there should have been a fuller explanation for not awarding any discrete sum for aggravating features or as to whether and if so, which features were taken into account in the award of £140,000 for non-pecuniary loss other than for psychiatric injury.

I also agree with the Judge that the task of break down of the main components of a non-pecuniary awards should not be unduly burdensome for an Independent Assessor, selected for the job because of his experience in assessing common law damages. The fact that, for want of the rigour of a trial process, his award may not be as well-founded as it might have been, or that he may have to approach the task with more caution than he might have done, if the issues had been forensically tested, should not affect the validity of his reasoning in considering and identifying the make-up of his award. As Mr Blake submitted, all the pointers are towards adequate reasoning of the make-up of non-pecuniary awards, not least in Article 14.6 of the ICCPR, which gave rise to section 133, the terms of section 133 itself and of the Home Office Note, particularly in paragraph 5. If further support were needed, it is to be found in the Strasbourg and domestic jurisprudence extending Article 6 protection to a wide range of administrative decisions involving entitlements to payments of benefit or compensation as a matter of right and, as in this case, to their assessment. See e.g. Gustafson v Sweden (1997) 25 EHRR 523, in which the European Court of Human Rights held that Article 6 was engaged by an application for compensation under a statutory compensation scheme; and Begum v TowerHamlets London Borough Council [2003] 1 All ER 731, HL, at paras 30, 62-69, 78 and 112, in which the developing Strasbourg jurisprudence on this point is reviewed; and De Silva Pontes v Portugal (1994) 18 EHRR 156, at para 30.

Also, the scheme contemplates that, notwithstanding an award, a successful claimant may yet pursue a claim at common law for some related aspect. It is, therefore, important, as the Judge observed, to know the precise sufferings for which the award is intended to provide compensation, and to what extent, in order to avoid double recovery. For this reason, it is particularly important to break down the assessment for a broad category such as “the consequences of imprisonment”, or “all factors” employed by Lord Brennan in these claims.

For those reasons, I would reject Lord Brennan’s grounds of appeal under the issues, which I have combined, of breakdown of awards and aggravating features.

As I have indicated, in each of the three claims, Lord Brennan deducted 25% from the award for past loss of earnings, for the living expenses that each of them would have had to meet had they not been in prison. He gave his reasons for doing so in the same terms in each of the assessments and supplemented them in identical terms in the respective addenda. In doing so, he followed the pattern set by his predecessor, Sir David Calcutt, and did so in reliance on common law principles. He distinguished between the regime under Prison Service Instruction 9/1999 for deducting a sum from convicted prisoners’ earnings of a sum in respect of the cost of their prison board and lodging. In each assessment, he gave as his principal reason that:

“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 [1989] 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”

In each of the addenda, the relevant corresponding passage read:

“I do not regard Prison Service Instruction 9/1999 as to the point. An applicant under this compensation scheme is not in the same position as a convicted person in relation to prison earnings whilst in prison. There is no question here of requiring the applicant to pay for his board and lodging in prison, nor any question of treating …[the applicant] in a way that puts him at a disadvantage compared to such a convicted prisoner. 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%, as deducted here, 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.

The counter argument appears to be based upon the injustice to a victim of a miscarriage of justice, having to accept such a deduction. …. It is said that such an approach is not applicable to convicted prisoners under the Prison Service Instruction. That is not to compare like with like. As I understand the Prison Scheme, that part of the earnings referring to board and accommodation had been deducted by the Prison Service directly from the prisoner’s earnings. It was therefore an actual contribution to such costs, as against here a deduction from loss of earnings, that would otherwise have been made but for imprisonment.”

In reaching that decision, Lord Brennan had regard, not only to Hodgson v Trapp, but also, as he mentioned in another passage in his assessment in each case, a passage from the judgment of Woolf J in Meah v McCreamer (1985) 1 All ER 367. Neither authority is factually exactly in point; as they both go to the issue of double recovery. This claim is concerned with what the claimant has actually lost, as Longmore LJ has emphasised.

Maurice Kay J found, at paragraph 39 of his judgment, that Lord Brennan had wrongly deducted a sum for saved living expenses from his assessment of past loss of earnings because, in his, the Judge’s, view, Hodgson v Trapp did not support such a course and because the House of Lords decision in Dews National Coal Board [1988] AC 1, post-dating Meah v McCreamer,was authority against it. He, therefore, quashed his decisions on this issue in all three cases.

Mr Tam submitted that the result of imprisonment for each claimant was that he had not had to expend money on necessities of life that he would have had to pay for if he had been at liberty. Those necessities were provided without cost to them. Accordingly, he maintained that it was not necessary for the purpose of putting any of them back into the position in which he would have been, to include in the compensation a sum representing living expenses which they would otherwise have had to pay. On the contrary, it would put them, at public expense, in a better position than otherwise they would have been.

Mr Tam also submitted that Lord Brennan’s decision on this issue was lawful and reasonable and entirely consistent with the Home Office Note. He cautioned, as in other issues in this appeal, against the dangers of direct application to the scheme of the principles of assessment of damages and of the policies driving them in the field of personal injury cases or of any other particular tort. He also cautioned against comparison of the rule in common law damages as to the irrelevance of how a claimant will spend his compensation with the exercise of assessing how much he is entitled to receive, particularly having in mind avoidance of double recovery. He added that, if any analogy is to be drawn with personal injury damages in this respect, it is in the field of gratuitous care, as exemplified in Hunt v Severs [1994] 2 AC 351. On that analogy, if the court were to treat the Home Office, the responsible public department for paying compensation under the scheme, as the hypothetical tortfeasor, it could not be made to pay for the necessities of life twice over, or, in other words and more generally, for costs not incurred.

Mr Blake, whose submission was adopted by Mr Engelman, submitted that the Judge had correctly found that Lord Brennan had erred in law in holding that common law principles required a deduction to be made and, that, in any event, principle, policy and fairness point against a deduction.

As to the common law, Mr Blake relied on Dews v National Coal Board for the proposition that a tortfeasor cannot obtain a reduction in damages otherwise payable to a claimant in respect of earnings on the basis that the injury has prevented the claimant from spending some of those earnings in the way that ordinarily he would have done. By what he termed “parity of reasoning”, he submitted that, where the injury in question is loss of liberty, compensation for loss of earnings occasioned by that injury should not be subject to a deduction to reflect the fact that incarceration has saved a claimant expenditure. He suggested that Hodgson v Trapp was not in point because it was concerned with credit given for benefits received from a third party, not with notional expenses saved in consequence of the claimant’s catastrophic injuries. Accordingly, he argued that Lord Brennan, in purporting to apply the common law, mistook it, and that the obligation on him to apply analogous common law principles requires him to apply the correct rule to the facts of this case.

As to policy, principle and fairness, he suggested, none of those notions favour deduction because it would require the claimants to give credit for benefits that they had never enjoyed. He suggested as an illustration of that suggestion that, if they had not been in prison they might have spent money on accommodation, but, for example, could have derived benefits from doing so, such as a right to buy in respect of a tenancy, or of inflation if they had bought properties. He also relied on the fact that, during a claimant’s long incarceration, he would have had no opportunity to select the food he ate, the clothes he wore or the conditions in which he lived, and submitted that it would be, therefore, unjust to make a deduction in respect of benefits over which he had no choice for so long. He also drew attention to the absence of any statutory provision for such a deduction, contrasting, for example, the provision in section 5 of the Administration of Justice Act 1982 for set-off of any savings attributable to maintenance at public expense in health care institutions, and the provision in section 2(1)(b) of the Prisoners Earnings Act 1996 for deduction for the cost of a prisoner’s upkeep from wages earned outside the prison.

In Hodgson v Trapp, a personal injury case,the House of Lords held that, in relation to damages for past and future care, attendance and mobility allowances payable under social security legislation of 1975 should be deducted because they were available to meet the cost of care generally, and thus mitigated the damage in respect of the cost of care. Lord Bridge of Harwich, with whom the other Law Lords agreed, said at 823a-c:

“In the end the issue in these cases is not so much one of statutory construction as of public policy. If we have regard to the realities, awards of damages for personal injuries are met from the insurance premiums payable by motorists, employers, occupiers of property, professional men and others. Statutory benefits payable to those in need by reason of impecuniosity or disability are met by the taxpayer. In this context to ask whether the taxpayer, as the ‘benevolent donor,’ intends to benefit ‘the wrongdoer’ as represented by the insurer who meets the claim at the expense of the appropriate class of policy holders, seems to me entirely artificial. There could hardly be a clearer case than that of the attendance allowance payable under the Act of 1975 where the statutory benefit and the special damages claimed for cost of care are designed to meet the identical expenses. To allow double recovery in such a case at the expense of both taxpayers and insurers seems to me incapable of justification on a rational ground. It could only add to the enormous disparity, to which the advocates of a ‘no-fault’ system of compensation constantly draw attention, between the position of those who are able to establish a third party’s fault as the cause of their injury and the position of those who are not.”

As I have said, that authority is not exactly in point, as it went to the issue of double recovery. Meah v McCreamer also is of little help. In that case the issue was whether a claimant, who had suffered serious brain damage as a result of the defendant’s negligence, resulting in a personality change causing him to commit offences for which he was imprisoned, could recover damages for that imprisonment. At page 383e Woolf J stated, obiter:

“… this case is unusual because it is not suggested that he has suffered any financial loss as a result of going into prison. He is a person who might have worked from time to time, but the money he has saved as a result of being boarded in prison has apparently been regarded as outweighing his loss. So I approach this case on the basis that there is no continuing financial loss as 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 [Mr David Kemp, QC, of Kemp & Kemp on Damages]

A further authority subsequent to both of those authorities (seemingly cited to Lord Brennan before he wrote the addendum in each case), is the decision of the House of Lords in Dews v National Coal Board, holding that an employee who had been injured at work could not recover unpaid pension contributions, which had no effect on his pension entitlement, as part of his loss of pay while absent from work as a result of his injury. Their Lordships considered the conflicting fundamental principles of the compensatory nature of personal injury damages and the lack of concern of the tortfeasor as to how the injured claimant would otherwise have spent his money. Lord Griffiths, with whom the other Law Lords agreed, expressed that latter principle in the following passage at page 14F of his speech:

“Where 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 available 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.” [my emphasis]

However, the House ruled that, as his failure to make contributions would have no effect on his pension rights, the former principle – compensation, not double recovery – should prevail, and held that the unpaid contributions were not recoverable.

As Lord Griffiths commented earlier in his speech, at 12g-13g, when considering, by way of example, the reconciliation of the two conflicting principles in the context of a tortfeasor’s claim to deduct from a claim for loss earnings the claimant’s travelling expenses to work, one or other policy may have to yield to common-sense on the facts of any particular case:

. “This second principle cannot, however, be applied without some qualification. It has always been recognised that a deduction has to be made for the expenses of earning the income that has been lost: see Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174, 191, per Lord Scarman. There was some discussion before your Lordships as to whether a miner’s travelling expenses to and from work should be deducted during the period when he was off work and not incurring the expense. The National Coal Board never seek to make this deduction, and Mr. Alexander prays this in aid as showing the illogicality of their approach in seeking to deduct the pension contributions. The National Coal Board justify their position by pointing out that where a man chooses to live is no concern of his employers. If he chooses to live in the country far from his work and incurs substantial travelling expenses, he will not be entitled to set the expense off for income tax purposes, and it is an example of expenditure on a way of life which is on no concern to the tortfeasor. One is, however, left with the fact wherever a man lives he is likely to incur some travelling expenses to work which will be saved during his period of incapacity, and they are strictly expenses necessarily incurred for the purpose of earning his living. It would, however, be intolerable in every personal injury action to have an inquiry into travelling expenses to determine that part necessarily attributable to a chosen life-style. I know of no case in which travelling expenses to work have been deducted from a weekly wage, and although the point does not fall for decision, I do not encourage any insurer or employer to seek to do so. I can, however, envisage a case where travelling expenses loom as so large an element in the damage that further consideration of the question would be justified, as, for example, in the case of a wealthy man who commuted daily by helicopter from the Channel Islands to London. I have only touched on the question of travelling expenses to show that in the field of damages for personal injury principles must sometimes yield to common sense, and to acknowledge the force of Mr Alexander’s submission that the calculation of loss in personal injury cases should be kept simple as a matter of policy, particularly where the sums involved do not justify the costs likely to be incurred by elaborate investigations.”

In my view, Lord Brennan correctly regarded the deduction that he imposed on its facts and, in accordance with the law, as necessary to avoid compensating each of these claimants for a loss that he had not suffered. This is not a case analogous to that of a tortfeasor’s indifference as to how a successful claimant might choose to spend his award of damages. It is a case, as Mr Tam put it, where a claimant has been saved necessary costsof living that would have been an incident of freedom and gainful employment, and where he should not be able to recover such costs as he had not incurred them.

As Lord Griffiths observed in Dews, either of the conflicting principles discussed in his speech may have to yield to common sense. However, in my view, this is not a case, any more than was Dews on its factswhere the compensatory principle should yield to the sort of practical consideration that arose for discussion in that case. There is nothing burdensome in claims for loss of earnings under the scheme of making a broad percentage deduction of substantial living costs that have not had to be met out of such putative earnings. Nor, on the facts, is it a case in which the opposing principle of a claimant being entitled to spend his award as he wished naturally finds application. It is one of deduction of putative necessary costs of putative gainful living in freedom. I do not regard the obiter ruminations of Lord Griffiths as to the good policy reasons in personal injury claims for not deducting run-of-the mill travelling expenses to work as any principled argument to the contrary in a case such as this.

As to Mr Blake’s argument that an Independent Assessor should not regard prison accommodation and keep wrongly imposed on a claimant as a benefit to be deducted, it should be remembered that the deduction is from his claim for pecuniary loss in the form of loss of earnings. It has no impact on the award that he is entitled to receive for his non-pecuniary suffering for his enforced incarceration and its conditions. All the unpleasant aspects of involuntary incarceration are, or should be, taken into account in that part of the award. And the deduction should be on the premise, as is the award for loss of earnings, of a conventional life style in which the claimant would have had to pay for his own living expenses out of those earnings, unless there is evidence to the contrary. If, factually, there was no such basis for the deduction, that argument should have been addressed to Lord Brennan.

Accordingly, whilst the issue here was not one of double recovery as in Hodgson v Trapp, the underlying principle is analogous. I do not consider that Lord Brennan erred in his reference to that principle or misapplied it to the facts. With respect, I agree with his reasoning and disagree with that of the Judge. Accordingly, I would allow this ground of Lord Brennan’s appeal.

As I have indicated in paragraph 6 of this judgment, section 133(4A)(c) provides that in making an assessment of

“so much of any compensation … attributable to suffering, harm to reputation or similar damage, the assessor shall have regard 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 investigations and prosecution of the offence; and (c) any other convictions of the person and any punishment resulting from them”.

And the Home Office Note, in paragraph 5, indicates that the assessment should take account of non-pecuniary loss, including:

“damage to character or reputation; hardship, including mental suffering; injury to feelings and inconvenience”.

In his assessment in the case of each of the Hickeys Lord Brennan made a deduction under section 133(4A) (c) for “criminality” from his total award for non-pecuniary loss (save for that for personal injury, physical or mental). In the case of Michael he deducted 20%, and in the case of Vincent, 25%. He explained the differentiation by reference to their different ages and records. In applying the deduction to the whole of the non-pecuniary loss save for that causing personal injury, he acted consistently with the practice of Sir David Calcutt (in Browning (3^rd December 1999), Robinson (7^th June 2000) and Hill (23^rd July 2001)).

In his addendum to his assessment in each case, he explained his decision in this respect in the following way:

“[20] Compensation under S.133 is for the suffering of punishment. Section 133(4A) refers to ‘suffering, harm to reputation or similar damage’. In my view this is a reference to non-pecuniary loss, as against financial loss generally referred to in this scheme as pecuniary loss e.g. loss of earnings.

The word ‘suffering’ in S. 133(4A) must embrace loss of liberty and consequences of imprisonment. It would be an unwarranted restriction, and artificial, to seek to restrict the word in this sub-set, or sub-sets, of ‘suffering’. Any reduction because of previous convictions and imprisonment, if it has been served, must apply to all the non-pecuniary loss award save for one exemption. Sir David treated that part of an award for personal injury (physical or mental) as not subject to any reduction. I agree. It is fair to treat this as arising independently of any previous offending.”

On the judicial review application to the Judge, Mr Engelmen challenged both the entitlement of Lord Brennan to make the deductions from all categories of non-pecuniary loss (apart from personal injury) and, in any event, the quantum of the deduction in each case on the ground of its inconsistency with the 10% deduction made by Sir David Calcutt in the case of their co-accused, James Robinson.

On the first point, one of statutory construction of section 133(4A), Mr Engelman submitted that it does not permit a deduction from all categories of non-pecuniary loss simply because of the presence of the words ‘… or similar damage’ and that, therefore, the deduction should only be applicable to damage which is similar to the preceding categories of non-pecuniary compensation specified, namely for ‘suffering’ or ‘harm to reputation’. He submitted, therefore, that such deduction could not be made from those elements of the non-pecuniary loss award attributable to loss of liberty, misconduct by the authorities, or aggravating features. The Judge had no hesitation in rejecting this submission. He said, at paragraph 42:

“…I have no doubt that subsection (4A) permits deduction from the whole of the non-pecuniary award. I can see no logical basis for Parliament having intended to make the distinction which Mr Engelman seeks to draw. I agree with Mr Tam when he suggests that ‘suffering, harm to reputation or similar damage’ is simply Parliamentary shorthand for non-pecuniary loss.”

Mr Engelman submitted that Lord Brennan’s and the Judge’s interpretation of this provision offends the ordinary canon of construction that expressions such “or similar damage” must be construed ejusdem generis with the words preceding them, namely “suffering” and “harm to reputation” and that neither were apt to include three other categories of non-pecuniary loss, namely “loss of liberty”, or the conduct of the authorities, in this case, the police, or any aggravating features of the circumstances in which the suffering was sustained.

Mr Tam submitted, as he had done to the Judge, that the words “suffering, harm to reputation or similar damage” is just Parliamentary shorthand for non-pecuniary loss. He said that “suffering” is a wide term and that its use with the other words suggest that the entire phrase was intended to have the wide meaning for which he contended. As to loss of liberty, he pointed out that section 133(4A) (a) specifically provided as a relevant factor in the assessment of compensation the severity of the punishment, usually, the length of the period of imprisonment/loss of liberty. In that context, any harm from loss of liberty resulting from a miscarriage of justice must realistically involve or include some “suffering”. He said that similar arguments applied to the conduct of the investigation and prosecution of the offence, which section 133(4A)(b) identified as another relevant factor in the assessment of compensation for “suffering” and to aggravating features of such conduct.

I agree with the construction of Lord Brennan, the Judge and Mr Tam, for the reasons that they have given. In my view, it is plain that sub-section (4A) permits deduction from the whole of the non-pecuniary award, save any sum included for personal injury. It is intended to provide compensation for “suffering” from the miscarriage of justice in question. It is clear from the structure of the sub-paragraph, and the factors in paragraphs (a) and (b) of it, that “suffering” is a compendious word and that the following words “harm to reputation or similar damage”, and the factors in paragraphs (a) and (b) governing all those terms have effect as an inclusive definition of all forms of suffering resulting from the miscarriage of justice, starting with loss of liberty itself, its length, conditions and circumstances and any aggravating features giving rise to it or associated with it, and including, where present, harm to reputation and suffering of the other sorts to which paragraph 5 of the Home Office Note, by way of accurate clarification requires an Independent Assessor also to have regard.

The mischief at which the provision is directed - the reason for enabling a deduction to be made for criminality from the entirety of the non-pecuniary suffering (save for personal injury) caused by the miscarriage of justice - is, in my view, two-fold. First, it enables account to be taken of the concurrent effect of any punishment for criminal offences of which the claimant has been rightly convicted and sentenced. Second, it allows an Independent Assessor to reflect the fact that an undoubted or hardened criminal may not suffer so greatly as a person of previous good character from many of the incidents of wrongful conviction and loss of liberty, in particular as to harm to reputation, injury to feelings, inconvenience, separation from family and other unpleasant aspects of incarceration. I am reassured in my conclusion by the fact that it accords with the consistent practice of both Independent Assessors and is of a piece with the rationale behind the Criminal Injuries Compensation Scheme, which permits deduction in respect of conduct and previous convictions from the compensation awarded.

Mr Engelman submitted that there is a substantial and inexplicable difference in two respects between the award to James Robinson and those to Michael and Vincent Hickey: 1) as to the award to Robinson of £172,000, for aggravating features when compared with the corresponding award to Michael Hickey of £35,000; and 2) the deduction of 10% in respect of criminality from Robinson’s award, as compared with the reductions on the same account 20% and 25% respectively in the claims of Michael and Vincent Hickey.

Lord Brennan, in his addendum to each of the Hickey assessments, set out his stance as to the first of these suggested inconsistencies, namely that he disagreed with Sir David Calcutt’s mode of assessment in the claim of James Robinson. I have already touched on this on the issue of breakdown of award/aggravating features. (see paragraph 17 of the addendum to the assessments in paragraph 57 above). In that and this context, he said a little more about the topic of inconsistency:

“17.

…. To apply Thomson to scheme awards produces figures e.g. £172,000 for Robinson and £100,000 for Patrick Hill, which are wholly disproportionate and, in my view, far into the realms of exemplary or punitive damages which the scheme excludes. Further such figures must include a penal element which is outwith the purposes of this scheme.

He then said, in the passage that I have also set out in paragraph 57, the need for a proportionate application to the scheme of the principle of compensation for aggravating factors, and continued:

“For these reasons I do not agree with the approach set out by Sir David in … the Robinson assessment. I do not agree that a multiple of 1.5 … is appropriate – producing the £172,000 in Robinson by applying 1.5 to the £115,000 basic award. Sir David’s assessment in Robinson appears to be inconsistent with his approach in Patrick Hill where he awarded £100,000 for aggravating factors on a ‘basic’ award of £400,000.”

…

He referred to the issue of question of inconsistency with the Robinson award again in the context of the discrete issue raised on it in relation to deduction for “criminality”. In rejecting the invitation on behalf of Michael Hickey and Vincent Hickey to reduce his reductions of 20% and 25% respectively on that account, he said, at paragraph 21 of the addendum:

“The applicants rely on Sir David’s reduction of only 10% in Robinson’s case … 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) – cf R v Secretary of State for Northern Ireland ex parte Hegan (unreported 7 September 2000). 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 S. 133(4A). Consistency between mine and Sir David’s assessment is an elusive concept if it is interpreted to be necessary from where Sir David’s conclusion was favourable to an applicant, but when it was unfavourable, I should be free to adopt a different approach.”

Mr Engelman appears to have raised the suggested inconsistency between the Robinson and the Hickeys’ awards principally in the context of and as a result of the percentage differences in the deductions made for criminality. He did complain, as did Miss Williams and he on behalf of Michael O’Brien and Vincent Hickey respectively, that the award for non-pecuniary suffering was “irrationally low”, which complaints the Judge rejected. But he does not appear to have argued that it was, on that account, also flawed because of inconsistency with the Robinson award. Certainly, the following remark of the Judge, at paragraph 32, suggests that the focus of the argument on inconsistency was on the percentage differences of the deductions:

“Looked at within the four corners of Lord Brennan’s assessment, I do not consider that £35,000 is irrationally low. In my judgment it is a permissible figure. I suspect that what may irk Michael Hickey is the fact that James Robinson received an aggravated award of £172,000 from Sir David Calcutt. For the reasons which I shall explain when I come to consider … the deduction for “criminality”, I do not consider that Michael Hickey can invoke the Robinson award so as to require Lord Brennan to make an award which he permissibly considered to be wholly excessive. …

The Judge, having disposed of Mr Engelman’s first argument before him on the deduction for criminality, namely the one of construction of section 133, moved to the second, at paragraph 43 of his judgment:

“It is the second of Mr Engelman’s submissions under this ground of challenge that calls for closer examination. It is to the effect that there is an unacceptable inconsistency between the deduction made by Lord Brennan from the awards in the cases of Michael Hickey and Vincent Hickey when compared with the deduction of 10% made by Sir David Calcutt in the case of their co-accused James Robinson. …

The Judge, after setting out Sir David Calcutt’s treatment of the Robinson claim on this issue on the facts, went on to deal with the principle of the Hickeys’ challenge with some care and in terms that deserve rehearsal in this judgment. He said, at paragraphs 44 -48:

“Two things seem to me to be incontrovertible. First, if the same assessor had determined all three cases, he would not have made such different deductions as between Robinson and the Hickeys. Secondly, when considered individually and by reference to each other but without reference to Robinson, the two Hickey deductions cannot be said to be irrational or otherwise susceptible to challenge. It follows that any successful challenge to them must depend on establishing that, one way or another, deductions which are in all other respects lawful offend public law criteria when considered alongside the deduction in Robinson’s case.

…

46.

Mr Engelman submits that by choosing to depart from Sir David Calcutt’s approach in Robinson, Lord Brennan acted irrationally and in contravention of the principle of consistency which applies unless there is good reason to the contrary. The starting point (which I accept) is that such factual differences as exist between the Hickeys and Robinson were substantially in the Hickeys’ favour ….

47.

If an applicant seeks to raise inconsistency as between his award and that of another applicant in a wholly unrelated case he will generally face an insuperable task. Here, however, it is necessary to have in mind that the applications of Robinson and the Hickeys arose out of the same miscarriage of justice in relation to convictions for the same offence. Ideally, the assessments should have been carried out by the same assessor, just as co-accused should, wherever possible, be tried and sentenced by the same judge. Sometimes, rightly or wrongly that is not achieved. If they receive different sentences from different judges on indistinguishable facts, criminal records and personal circumstances and the one receiving the harsher sentence appeals on the basis of disparity, the Court of Appeal, Criminal Division only allows his appeal if he has ‘a justified sense of grievance at what has happened’ (see R v. Butcher (1989) Cr App R(S) 104). Where the harsher sentence was in all other respects unobjectionable, it is usually difficult to establish that any sense of grievance is justified.

48.

It seems to me that Lord Brennan’s approach in the present case was akin to that of later sentencing judge who considers that the earlier sentencing judge was too lenient in relation to the indistinguishable co-accused. He simply disagreed with 10% reduction which Sir David Calcutt had made in Robinson. Was he to make what he believed (and, in my judgment, permissibly believed) to be the correct deduction or was he bound to allow himself to be influenced by an award with which he disagreed? In my judgment, it was neither irrational nor otherwise unlawful for Lord Brennan to apply deductions of 20—25% which were in all other respects unobjectionable. He was not bound by any principle of consistency because there was good reason his own permissible judgment – to depart from Sir David’s approach. If, by so doing, he had occasioned a justified sense of grievance on the part of the Hickeys – and I find the approach of the Court of Appeal, Criminal Division to be a helpful comparison in this context – then I would readily conclude that his decision was Wednesbury unreasonable. However, any sense of grievance is unjustified if it simply rest on the fact that deductions which permissible in all other respect compare unfavourably with a more generous approach by a different assessor to a co-applicant. It follows that this ground of challenge fails.”

Mr Engelman prefaced his submissions to this Court with the proposition that there should be consistency and, to the extent that the two notions do not overlap, equality of treatment in decision-making. As to the former, he cited, among other examples of that proposition, observations of Lord Denning MR in R v Northern Ireland Commissioner, ex p Social Services Secretary [1981] 1 WLR 1017 at 112E-F, in relation to decisions of a social service commissioner, and of Simon Brown LJ, as he then was, in R v Poplar Coroner, ex parte Thomas [1993] QB 610 at 630D, in relation to a coroner’s decision whether to hold an inquest. He submitted that it also applied to administrative decision-making, citing R v Hertfordshire CC, ex parte Cheung, The Times, 4 April 1986, which concerned student grants, and R v Secretary of State for the Home Department, ex parte Urmaza [1996] COD 479, per Sedley J, as he then was,which concerned a Home Office internal immigration policy document on marriage and children. As to equality of treatment, he referred to the proposition in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5^th Edition, para 13-038, as requiring:

“… similar situations not to be treated differently and different situations not to be treated in the same way, unless such treatment is objectively justified.”

Mr Engelman submitted that, given the comparable periods of imprisonment and associated suffering resulting from the miscarriages of justice to James Robinson and the Hickeys and their respective histories of criminality, it was difficult to see how, on the basis of equality of treatment, awards in favour of the Hickeys should be substantially lower than that of James Robinson. He challenged the reasoning of the Judge, on his analogy with disparity in sentencing between different judges, that given the different decision-makers, the Hickeys, could have no justified sense of grievance. He said that the fact that Lord Brennan had disagreed with the approach of Sir David Calcutt was not, an “objective justification” for inconsistency and was not, in any event, in accord with the principle of equal treatment, both of which, in public law issues like this, demanded a different approach from that in cases of disparity of sentencing in criminal cases. He said that, in any event, it was not sufficient for Lord Brennan simply to say that he disagreed with the approach of Sir David Calcutt in Hill & Ors; he should have said why he disagreed

Mr Tam, on the other hand, submitted that, though a desirable aspiration, it is “elementary” that there is no general legal requirement of consistency in administrative decision-making or in the exercise of “a discretionary area of judgment”. He said that Urmaza, is not a good authority to the contrary in relation to administrative decisions, since the Court of Appeal has twice disapproved it. The first was in R v SSHD,ex parte Gangadeen [1998] INLR 206, in which Hirst LJ, with whom Swinton Thomas LJ and Sir Brian Neill agreed, said, at 214A-215C that the Court should not intervene in a minister’s decision in application of his own policy unless he disregarded it or the decision was inherently irrational. In the second, M v SSHD [2003] EWCA Civ 146, [2003] 1 WLR 1980, the Court held (without reference to Urmaza, which was seemingly not cited to it) that an administrative decision inconsistent with a decision of a court on the same issue and same material was permissible so long as it was properly explained. Laws LJ, with whom Jonathan Parker and Ward LJJ agreed, said at para 18:

“… A duty owed by one decision-maker – A – to take account of the views or decision of another decision–maker – B – upon the same or an overlapping issue means nothing whatever unless A has to engage with what B has said: to explain, however shortly, why he differs from it he does.”

Mr Tam submitted that, in any event – though it was really the same point – that the concept of consistency does not require a decision-maker to repeat a past error, see e.g. ex p Wilkins (unreported, CO 4676/2000) per Moses J at para 55. Here, he submitted, Sir David Calcutt’s decision in the claim of James Robinson was not a legally or factually binding precedent; it was a confidential assessment made in another case by another administrative decision-maker. In circumstances in which there is nothing wrong with Lord Brennan’s decisions in the Hickey claims in themselves - as the Judge held and which is not challenged – and in which Lord Brennan explained why he considered Sir David’s approach to have been wrong, there was an objective justification for his different approach and level of assessment.

In my view, the Judge’s reasoning and Mr Tam’s complementary submissions are to be preferred. The Judge found that the awards to the Hickeys were in themselves perfectly acceptable. Whilst consistency between decisions, judicial or administrative, on similar issues and facts is always desirable, it is not always achievable where there are different decision-makers and where one may be right and the other may be wrong, as for example in Hegan, where an Independent Assessor was held to have erred in seeking consistency with earlier decision. As Moses J said in ex p Wilkins, the concept of consistency does not require a decision-maker to repeat what he regards as a past error, though as Laws LJ emphasised in M v SSHD, he should it explain his reason for differing, however shortly. Here Lord Brennan reached what the Judge regarded as an acceptable figure for deduction in each of the Hickey claims, and, contrary to Mr Engelman’s suggestion in argument, he did explain why he differed from Sir David Calcutt on this issue in the passages that I have set out in paragraphs 57 and 115. Finally, I can find no logical basis for distinguishing between the dilemma of the courts’ response to inconsistency between two different sentencing judges in criminal cases and of awards of compensation by different Independent Assessors in cases such as this. Where the later decision under challenge on account of inconsistency is objectively justified, and explained as were those of Lord Brennan in relation to this aspect of the claims of Michael and Vincent Hickey, I agree with the Judge that they can have no justified sense of grievance at the resultant inconsistency.

Accordingly, I would also reject this ground of appeal on behalf of Michael and Vincent Hickey.

In the result: on Lord Brennan’s appeal, I would dismiss it on the issue of breakdown of award/aggravating features, but allow it on the issue of saved living expenses; and on the appeals of Michael and Vincent Hickey on the issues of deductibility for criminality and lack of consistency, I would dismiss both of them.

I agree with Auld LJ. I add a few words since we are differing from the judge on issue 3 “Saved living Expenses” and I have not found the point an entirely easy one. My Lord has set out the terms of Lord Brennan’s award, the judgment of Maurice Kay J and the submissions of the parties and I need not repeat them.

One must begin by appreciating the nature of the claim against which it is said by the Home Secretary that the saved living expenses should be set off. It is not, for example, a claim for the cost of care; if it were, the fact that the state had gratuitously provided the care would mean that there could be no claim. Hunt v Severs [1994] 2 AC 251 on which Mr Tam relied would then be relevant, but in this case it is not. The relevant claim, as Lord Brennan perceived, is (and can only be) loss of earnings. It is against this claim that the Home Secretary seeks to set off the saved living expenses.

Secondly, one must be clear about the nature of the set off which is claimed. It is not a claim to set off benefits which the claimants have received from a third party or from the state which has caused them to be wrongly convicted. No one suggests that some evaluation should be made of the board and lodging provided by HM Prison Service for the duration of the claimants’ incarceration. This, as Lord Brennan did not perceive, makes Hodgson v Trapp [1989] AC 807 irrelevant; that was a case about deduction of benefits conferred on the claimants by third parties (in that case by the state) and no one would describe imprisonment as a benefit. Lord Brennan can hardly be blamed for this error since Mr Blake’s submissions on behalf of the claimants as set out in paragraph 95 of my Lord’s judgment are redolent of the same error. But any assertion that the claimants have to suffer a deduction from their proper award by reason of benefits they have received is misplaced.

The set-off which the Home Secretary asserts is a set off for what the claimants would have had to spend on ordinary living expenses if they had been at liberty and in employment. It is accepted that the claimants would have probably obtained gainful employment and that is why they are entitled to recover the earnings which they would have received but for their wrongful imprisonment. It is said that 25% of their earnings would have been spent on the necessities of life viz. providing accommodation and sustenance for themselves in the outside world.

Mr Tam did not draw our specific attention to any case where such a set off (for saved living expenses) against a claim for loss of earnings had succeeded. But the nearest common law analogy to the claims in the present case is the claim for loss of earnings in respect of the “lost years” which a claimant could have expected to enjoy but for a defendant’s negligence in curtailing his expectation of life. In a similar way the claimants in the present appeal need to be compensated for the “lost years” they have spent in prison.

Claims for lost years in personal injury cases at common law have only come before the courts since Pickett v British Rail Engineering Ltd [1980] AC 136 overruled Oliver v Ashman [1962] 2 QB 210. But once it was accepted that such a claim could, in principle, be made it was also accepted that saved living expenses should be deducted from such a claim. In so doing their Lordships followed the decision of the High Court of Australia in Skelton v Collins (1966) 115 CLR 94 of which Lord Wilberforce said this (at pages 150H-151A):-

“The judgments, further, bring out an important ingredient, which I would accept, namely that the amount to be recovered in respect of the earnings in the “lost” years should be that amount after deduction of an estimated sum to represent the victim’s probable living expenses during those years. . . . . There is the additional merit of bringing awards under this head into line with what could be recovered under the Fatal Accidents Acts.”

This reference to the Fatal Accidents Acts which was also made by Lord Salmon (at page 154C) and Lord Edmund-Davies (at page 163D) is significant. A claim by the estate for loss of earnings was frequently made in such cases up to the date of the trial, even before Pickett’s case and, after Pickett’s case, was made for the lost years also, in respect of deaths occurring before 1st January 1983 when section 4(2) of the Administration of Justice Act 1982 (proscribing damages for loss of income for any period after death) came into force. Both in respect of such claims and in respect of the dependency claims, it has always been the “net loss of earnings” that have been the relevant starting-point, see Harris v Empress Motors [1984] 1 WLR 212; in that case it was said that the modern practice was then “to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself”. The conventional figure for a married couple was said to be 33% and 25% where there were children (see page 217A-C) per O’Connor LJ.

Lim v Camden Health Authority [1980] AC 174 presented a similar problem in a case where the plaintiff was never going to be able to earn her living as a doctor but was entitled to recover for loss of earnings. The House of Lords said that in order to avoid double recovery there had to be two deductions; first the expenses of earning the income which had been lost (which does not arise here but was discussed in Dews v National Coal Board [1988] AC 1 relied on by the judge); and

“secondly, the plaintiff’s living expenses. This is necessarily a hypothetical figure in the case of a “lost years” claim, since the plaintiff does not survive to earn the money; and since there is no cost of care claim (the plaintiff being assumed to be dead), it falls to be deducted from the loss of earnings award”, see per Lord Scarman at page 191C-D.

The House of Lords in Dews was, of course, aware of this principle and it was indeed adverted to in the speech of Lord Griffiths at page 13E-G. It is clear, therefore, that Dews (which is a case where the plaintiff suffered no recoverable loss) is no authority against deductions for saved living expenses and, with respect, the learned judge was wrong to think that it was. It is true that on page 14F Lord Griffiths says that 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. But he is not there thinking of a “lost years” claim, to which he adverted and of which he had disposed on the previous page. As Lord Scarman had made clear, in a “lost years” case there has to be a deduction not merely for the expenses of earning the income which has been lost but also for living expenses. Lord Griffiths was not intending to doubt that principle in any way.

So, provided that an assessment separates out the award for loss of liberty and the award for loss of earnings and provided that the loss of liberty award is properly and appropriately assessed, it is consonant with principle and, indeed, inevitable that the further award for loss of earnings should take into account the claimants’ saved living expenses. 25% is, indeed, a modest deduction but is entirely in line with deductions made in Fatal Accident cases where the deceased had a family and is, in my view, the right conventional figure for the assessor to use in the absence of contrary evidence.

If, of course, no claim for loss of earnings is made, then no deduction for saved living expenses would be permissible.

It is for these reasons that I agree with my Lord that this ground of Lord Brennan’s appeal should be allowed.

I also agree.