Miller, R (on the application of) v The Independent Assessor

This is a claimant’s appeal from a decision of the Divisional Court which, on 11 November 2008, dismissed applications by the claimant and Darren Hall, for judicial review of the separate assessments made in respect of each of them by the Respondent. Darren Hall has not appealed.

The Appellant suffered a miscarriage of justice. In November 1990 at Swansea Crown Court, when aged 24, he was convicted of murder and sentenced to life imprisonment. The conviction came at the end of a second trial, the first trial having been terminated at a late stage by the death of the trial judge. The crime of which the Appellant and others were convicted was particularly brutal, and attracted a lot of publicity, especially in South Wales. He appealed against conviction, and on 16 December 1992 his conviction was quashed, with serious criticisms from the court of the oppressive way in which he had been questioned by the police. The Appellant was then released, having been in custody for four years and one month. Another man was later convicted of the murder, and it is now accepted that he acted alone.

On 11 January 1993 solicitors acting on behalf of the Appellant applied to the Home Secretary for an ex gratia payment of compensation. In March 1993 the solicitors were informed of the Home Secretary’s decision that such a payment should be made. Over the next few years some interim payments were made, but the matter did not progress as it should have done, so that it was November 2007 before a final assessment could be made. This appeal is concerned with one part of that assessment, namely the adequacy of the award of £55,000 for the Appellant’s “loss of liberty and the consequences of imprisonment which usually arise in any sentence of imprisonment”. I deliberately use the Assessor’s words describing that part of his award. Particular factors of special weight were the subject of separate and additional awards totalling £65,000, which formed the other part of the overall basic award of £120,000. There were then awards for aggravating features (£35,000), for psychiatric damage, and for pecuniary loss, but we are not concerned with the awards made under those heads.

In Bhatt Murphy v The Independent Assessor [2008] EWCA Civ 755 Laws LJ helpfully explained how compensation claims for miscarriages of justice have been handled in recent years. Since 1957 the Home Secretary has dealt with such claims in accordance with the advice of an Independent Assessor. In 1976 the United Kingdom ratified the International Covenant on Civil and Political Rights, Article 14 (6) of which contained an obligation to compensate those whose convictions are subsequently set aside “on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice”, save where non-disclosure of the fresh evidence is wholly or partly attributable to the claimant. Initially the UK purported to meet the obligation imposed by Article 14 (6) by means of the existing arrangements for ex gratia payments, but eventually that obligation was discharged by the enactment of section 133 of the Criminal Justice Act 1988. It deals only with cases in which there is ‘ new or newly – discovered fact ’ and the present case is not such a case, but it is right to have in mind the provisions of section 133 because it is common ground that once the Act came into force statutory and ex gratia claims were handled in the same way. In particular under section 133 –

If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State”.

The Statute did not originally give any guidance as to how the assessor should assess the compensation, but with effect from 1 January 1996 it was amended to include section 133(4A) which reads –

the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;

the conduct of the investigation and prosecution of the offence; and

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

In 1985, in a written Parliamentary answer, the Home Secretary said that the Independent Assessor “applies principles analogous to those on which claims for damages arising from civil wrongs are settled”, and the Home Secretary bound himself to accept any recommendation as to amount made by the Assessor.

In June 1997 the Home Office published a Note to assist successful applicants, that is to say those to whom the Secretary of State accepted that compensation should be paid. A revised version of that Note was issued by the Office for Criminal Justice Reform in April 2006. In paragraph 1 the 2006 Note states that –

That is said by reference to section 133, because the Secretary of State decided in April 2006 to end the discretionary scheme save in relation to applications already received, of which this application was one. Much of the early part of the Note is concerned with how the written material is gathered together and presented to the Independent Assessor, then, at paragraph 8, under the heading “Principles Applied” the Note says again that the Assessor will apply principles analogous to those governing the assessment of damages for civil wrongs. It states that the assessment will take into account both non-pecuniary and pecuniary loss arising from the wrongful conviction. Paragraph 9 states –

The Note then incorporates section 133 (4A) of the 1988 Act (set out above) and continues –

The Assessor may deduct an amount in respect of any previous or any subsequent convictions.

The Assessor may also deduct an amount to take into account any conduct by you which can be construed as contributing to the miscarriage of justice.”

The Note then deals with personal pecuniary loss, saved living expenses, legal costs, and so forth. It makes it clear that the amount of the award is solely a matter for the Independent Assessor, and states in paragraph 16 that –

There are other provisions as to confidentiality, with which I need not be concerned, and it is worth noting that there is no provision for any form of appeal.

Thus far it will be clear that very little has been said in the Statute, or in the published material about how the Independent Assessor is to reach his conclusions as to the amount to award, but that process has received some consideration by the courts, which have also considered the similar question of how juries and others should reach awards in civil actions, and what, if any, guidance they can be given. It is the case for the Appellant that the Respondent should have regarded some of the guidance as relevant, as well as some of the judicial awards made in respect of torts such as false imprisonment, so I turn now to the authorities which we have been asked to consider. They fall into three categories, first those concerned with the increasingly accepted need to give guidance to decision-makers in fields where traditionally there has been no guidance of any kind, so as to render awards more predictable, more consistent and more transparent. Secondly our attention has been drawn to some awards in cases of wrongful arrest and false imprisonment which, it is said on behalf of the Appellant, the Respondent should have used to assist him to reach an appropriate award in the present case. Finally we have been asked to look at the decision of the Administrative Court and of this court in Independent Assessor v O’Brien & others [2003] EWHC 855 (Admin) and [2004] EWCA Civ 1035 to see what assistance we can derive from what was decided in that case.

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

In Scotland v Metropolitan Police 19 January 1996, unreported, the Court of Appeal considered an award of damages for personal injuries made by a jury in an action against the police for assault and false imprisonment. The Appellant contended that the award was too low. The court endorsed what had been said in John about the need for guidance, not only in defamation actions, but also in this type of action, and reminded itself of the limited circumstances in which an appellate court can interfere with the award of a jury.

In Thompson & Hsu v Commissioner of Police of the Metropolis [1998] QB 498 this court considered two claims against the police. The female claimant, Thompson, was arrested, man-handled, assaulted and detained for four hours. She was awarded £1500 with exemplary damages of £50,000.

The male claimant, Hsu, was arrested, assaulted, abused, injured and detained for 1¼ hours. He was awarded £20,000 and exemplary damages of £200,000.

The Court of Appeal re-structured both awards. The awards of exemplary damages were drastically reduced, and in the case of Thompson the basic award was increased to £10,000. The court said again that juries needed to be given guidance, and at 515D Lord Woolf M.R., giving the judgment of the court, suggested some starting points. For wrongful arrest and false imprisonment lasting 24 hours the suggested starting point was £3,000 (which, allowing for inflation would now be nearly £4,100). For malicious prosecution resulting, after about 2 years, in a Crown Court trial the suggested starting point was £10,000. The figure would be greater if the claimant was convicted, and had to appeal. At 517E the court pointed out that its suggested figures would have to be adjusted to allow for inflation.

In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318 a female police officer was found to have suffered sexual discrimination, and to be entitled to compensation for injury to her feelings. The range of awards by tribunals under that head had been wide, and at paragraph 47 Mummery L.J. said that –

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

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

In Lunt v Liverpool City Justices 5 March 1991, unreported, an occupier of domestic premises, aged 57, served 42 days imprisonment for failing to pay rates he should never have been required to pay. He was a man of impeccable reputation, in poor health. His reputation was damaged and he found the whole experience traumatic. For wrongful imprisonment the Master awarded £13,500. This court increased the award to £25,000, which, making allowance for inflation, would now be in excess of £42,000. In R v Governor of Brockhill Prison ex parte Evans (No.2) [1999] QB 1043 there was a misunderstanding as to when the claimant, who had served a two years sentence for robbery, should be released. The misunderstanding was corrected by the decision in another case. As a result Evans served 59 days more than she should have done. For that period of false imprisonment damages, if payable, were assessed at £2,000, and this court raised that award to £5,000, which would now be £6,466. That was a decision with which the House of Lords refused to interfere [2001] 2 AC 19. In Evans, as in other cases, the court refused to lay down any formula, and discouraged an analytical approach, but plainly the emerging pattern of awards did have to be considered to ensure that future awards were proportionate and consistent.

In R v Secretary of State for the Home Department ex parte Bouazza [1998] unreported, the Senior Master had to assess the damages which should be paid to an Algerian asylum seeker who was held at a detention centre for 63 days after he should have been released. Having considered Lunt, Thompson and ex parte Evans he awarded £10,000, which would now be £12,860. As the Master pointed out, Bouazza was different from Lunt because Bouazza was originally lawfully detained, but he suffered greatly in detention because he was told that he would be returned to Algeria, which would almost invariably result in torture and death. That was reflected in the quantification of the damages for his psychiatric injuries, but, said the Master, “it also has its place in the quantification of his unlawful detention as each day spent in detention was a further day in which he feared the subsequent removal Algeria.”

The last authority to which I need to refer at this stage is R (on the application of B) v Secretary of State for the Home Department [2008] EWHC 3189 (Admin) in which Mr Kenneth Parker Q.C., sitting as a Deputy High Court Judge, on the basis of written submissions, awarded £32,000 to a female claimant who was unlawfully detained for 6 months after the end of a period of about 12 days of lawful detention. At paragraph 22 the Deputy Judge said –

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

In this case the claimants sought judicial review of awards made by the present Respondent. O’Brien had served 11 years and 43 days in custody for murder and robbery, offences which he did not commit. For the consequences of imprisonment the Respondent awarded £125,000 to which he added £20,000 for the short-comings of the investigation, and an additional award for psychiatric illness.

In his challenge to the award of £125,000 in the Administrative Court the claimant drew attention to the obligation of the Assessor to “apply principles analogous to those governing the assessment of damages for civil wrongs”. For the Respondent it was contended that there are only two general principles, namely that the aim of an award of damages is to put the claimant into the position in which he would have been but for the civil wrong, and, secondly, that money cannot in fact equate to a non-pecuniary loss. It is simply the best that a court can do. Maurice Kay J. (as he then was) found that too abstract. He considered it necessary for the Respondent to look at guidance cases, and awards made in the civil courts and to use the level of awards in personal injury cases as a form of cross-check. Turning to the second ground of challenge, the judge accepted that it was necessary for the Respondent to explain his award for non-pecuniary loss by breaking it down into its constituent parts. The judge found that until the award of £125,000 was further itemised he could not decide whether whatever part of it represented long term loss of liberty was so low as to be irrational, but the figure for loss of liberty “should reflect its duration on a proportionate but not arithmetically extrapolated basis”. That was said in relation to the line of authority to which I have referred, including Lunt and ex parte Evans, both of which had been cited to the judge. There were a number of other issues raised in the Administrative Court with which, for present purposes, I need not be concerned.

There was an appeal by the present Respondent to this court which was only successful in relation to a matter of no present relevance. Auld L.J., giving the first judgment, set out the background and the submissions in relation to the first issue, namely how to apply by analogy civil law principles for the assessment of damages. He pointed out that when trying to establish a proper sum to be paid by way of compensation there is nothing which relates a particular period in custody, or a particular physical injury, to a specific sum of money, so whoever makes the assessment “needs some rational basis, that he can articulate, for arriving at one overall figure, and also some means of checking against double-counting or under-counting in respect of certain factors to which he has had regard.” Auld L.J recognised that an Independent Assessor will always have experience in relation to common law damages, and that there are differences between the common law and compensation under the scheme as to what may or may not sound in damages. He also recognised that awards under the scheme are, at least initially, confidential, but itemisation may be essential to avoid double recovery if there is a common law claim arising out of the same facts. So in the end he accepted that the Independent Assessor “should identify the heads of suffering and attempt to evaluate them in monetary terms, where possible by analogy with comparable forms of suffering for which remedies and clear principles for their assessment are provided in civil law. As (counsel) noted, the most common types of non-pecuniary loss that are likely to arise in a miscarriage of justice claim are those that arise in malicious prosecution and false imprisonment claims, namely loss of liberty, conditions and effects of imprisonment, stress of the prosecution process and conviction, damage to reputation and family life, and other personal hardship.” (Paragraph 45 to 46).

The second issue considered by this court was whether compensation awards should be broken down to separate out aggravating features. The court accepted that normally they should, and at paragraphs 76 to 86 of his judgment Auld L.J set out some broad objectives which an Independent Assessor should keep in mind when assessing. First, the injunction to apply principles analogous to those governing the assessment of damages for civil wrongs can have no content if it does not apply to “principles applicable to the assessment of damages in the most cognate civil law wrongs of malicious prosecution and false imprisonment” (paragraph 76). In such cases fairness requires explanation and consistency, as illustrated in Thompson and Gerald v Metropolitan Police 10 June 1998 unreported. The guidance to juries is also of value to judges, and is in harmony with the general trend for “judicial and quasi-judicial bodies to give more by way of reasons for their decisions than many formerly did” (paragraph 76 – see Vento (surpra). So the Independent Assessor can be expected to give an adequately reasoned decision, and his second broad objective should be to provide a useful starting point which will enable himself and his successors to be consistent. Auld L.J. thought that this court should decline to suggest figures for conventional awards for “loss of liberty simpliciter” because of the possible variants, and the confidentiality of the awards, but he considered that –

The third broad objective to be borne in mind is –

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

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

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

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

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

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

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

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

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

I find that passage difficult to follow. As the Respondent did not deal with the authorities in detail, and as the award cannot on the face of it be related to the authorities, how could the court be satisfied that they were properly taken into account?

Latham L.J. seems to have been troubled by the Respondent's use of the JSB’s guidelines, because in paragraph 20 he continued –

The judgment then referred to O’Brien saying, inaccurately, in paragraph 21 that –

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

In fact after the Court of Appeal had given its judgment in O’Brien the Respondent reassessed the loss of liberty element at £125,000. Permission was then given to seek judicial review in relation to that award, but it was not pursued because O’Brien obtained a substantial award of damages from the relevant Chief Constable.

Returning to the decision of the Divisional Court in the present case, Latham L.J. in paragraph 21 acquitted the respondent of any suggestion that he misused the JSB guidelines, and in paragraph 22 he declined to say that the awards were irrationally low.

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

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

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

In her written and oral submissions Ms Williams contended that –

For the Respondent Mr Tam QC. submitted that –

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

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

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

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

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

I agree

I also agree.