O'Brien & Ors, R (on the application of) v Independent Assessor

At Stafford Crown Court on 9 November 1979 four men were convicted of the murder of Carl Bridgewater. They included Michael Hickey, who was then aged seventeen, and Vincent Hickey who was aged 25. Michael Hickey was sentenced to detention during Her Majesty’s pleasure, with a concurrent sentence of eight years’ detention for aggravated burglary. At the same time he was also sentenced to concurrent sentences of twelve years’ detention for two unconnected armed robberies. Vincent Hickey was sentenced to life imprisonment for the murder, with a recommendation that he serve a minimum of twenty five years, and to 10 years concurrent for the aggravated burglary. He was also sentenced, concurrently, to 12 months imprisonment for an unconnected offence of deception. Both men remained in custody until they were released on bail in February 1997. Earlier appeals, had been unsuccessful but on 30 July 1997 the Court of Appeal Criminal Division quashed the convictions for murder and aggravated burglary. The equivalent convictions of their co-accused, Patrick Molloy (who had died in prison) and James Robinson, were quashed on the same occasion.

Michael O’Brien, together with two co-accused, was convicted at Cardiff Crown Court on 20 July 1988 of the robbery and murder of Philip Saunders. He was sentenced to life imprisonment and he remained in custody until he was released on bail on 23 December 1998. On 25 January 2000 his conviction, and those of his co-accused, were quashed by the Court of Appeal Criminal Division.

Following the quashing of their convictions, Michael Hickey, Vincent Hickey and Michael O’Brien made applications to the Secretary of State for compensation. They claimed under section 133 of the Criminal Justice Act 1988 which is headed “Compensation for miscarriages of justice”. In its amended form, section 133 provides:

In each of the cases of the Hickeys and O’Brien, the Secretary of State determined that the applicant had a right to compensation under section 133. It is the practice of the Secretary of State to appoint an independent assessor who is experienced in the assessment of damages. Until July 2001, the assessor was Sir David Calcutt QC. He was then succeeded by Lord Brennan QC. The assessments in relation to the Hickeys and O’Brien were carried out by Lord Brennan.

The assessment of the award to Michael Hickey resulted in the following:

The assessment of the award to Vincent Hickey was as follows:

of this figure, £50,000 represented past and

interest 3,248

The assessment of the award to Michael O’Brien was as follows:

of this figure, £125,000 represented “the consequences

The three Claimants each made applications for permission to apply for judicial review. In each case, Lord Brennan produced an Addendum to his original assessment after the commencement of proceedings. It is in the form of a response to representations made by solicitors and/or the matters set out in the claim forms. O’Brien was granted permission to apply on 7 October 2002. The Hickeys were initially refused permission but it was granted to them both at a renewal hearing on 22 November 2002. Arrangements were made for the three substantive applications to be heard together.

The grounds of challenge overlap in relation to the three applications. Some relate to specific elements in the awards and take issue with the quantification or exclusion of particular items. In some cases the points are not common to all three cases. I propose to consider these more specific points later in this judgment. The first grounds of challenge which I shall address are of a more general nature and raise important matters of principle.

This heading is my shorthand which is intended to embrace a number of submissions on matters of general principle which were advanced on behalf of all three Claimants. To an extent, they impact upon some of the later grounds of challenge.

Quite clearly, section 133 provides for a statutory compensation scheme in which the Secretary of State decides whether an applicant has a right to compensation (section 133(3)). If that issue is resolved in favour of the applicant, the independent assessor determines the amount of such compensation (section 133(4)). The only provisions in section 133 which prescribe the approach of the assessor are the description of the compensation in section 133(1) as “compensation for the miscarriage of justice to the person who has suffered punishment” and the requirement in section 133(4A) that the assessor shall have regard to the three matters there listed.

The Secretary of State has issued a document under the title Compensation for Miscarriages of Justice: Note for Successful Applicants, (“the Note”). It is dated June 1997. It is common ground than an applicant whose right to compensation has been established has a legitimate expectation that the assessment of his compensation will be in accordance with that document. The preamble to the document states:

The first issue which divides the parties is as to the meaning of “principles analogous to those governing the assessment of damages for civil wrongs”. The case for the Claimants is that wherever there is an analogous principle governing the assessment of damages for civil wrongs, the assessor must apply it and that analogous principles will often exist in the law of damages for personal injury, malicious prosecution, false imprisonment and the like. However, on behalf of Lord Brennan, Mr. Tam makes a different submission. He contends that paragraph 5 does not say or mean that legal rules for the assessment of damages in respect of individual torts must be directly applied. Section 133 is not a surrogate for damages which may be recoverable in tort. It does not depend upon a tort having been committed. Moreover, an award of compensation under section 133 is not a bar to a civil action for damages arising out of the same events. In addition, damages in relation to torts are not always consistent as between different torts and there is also some specific inconsistency between the law of damages and the scheme under section 133. For example, the reduction by reference to a criminal record is made in the latter but not necessarily in the former; campaign costs are allowed in the latter by reference to the wording of the document (“expenses, legal or otherwise”), but may be too remote at common law. All this leads Mr. Tam to submit that there are only two general principles in respect of damages for civil wrongs: (1) that the aim of damages is to put the claimant into the position in which he would have been but for the civil wrong; and (2) that money cannot in fact equate to a non-pecuniary loss – it is simply the best that a court can do.

In my 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 enjoin the assessor to apply relevant common law principles wherever they are clear and analogous. I find support for this conclusion in the Northern Irish case of Hegan (unreported, 7 September 2000). Section 133 applies in Northern Ireland and assessments are made in accordance with the Note. Hegan served over eight years in prison for a murder which was later accepted to be a miscarriage of justice. When the assessor came to quantify his compensation he concluded that he should do so on the same basis that he had applied to Hagen’s co-accused, A, some years earlier, notwithstanding the fact there had been “further developments in the case law” in between. Those developments included the increases in quantum illustrated by Thompson v. Commissioner of Police for the Metropolis [1998] QB 498 and Dodds v. Chief Constable of the RUC [1998] NI 393. However, the assessor took the view that it would be unfair to A, who had acted more promptly, if his co-accused Hegan were to receive a higher award because of a long delay in the particularisation of his claim. Hegan’s award was therefore pitched at a level which disregarded Thompson and Dodds and the levels of damages indicated in the later Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases. On Hegan’s application for judicial review, Kerr J identified as a well-established principle that non-pecuniary loss should be assessed according to values current at the date of the assessment. He said (transcript, pp 10-11):

I am satisfied that the approach adopted by Kerr J is correct and I propose to adopt the same approach in relation to paragraph 5 as I consider Mr. Tam’s submission on this point to be far too narrow. I shall return to the question of whether Lord Brennan erred in his approach to paragraph 5 when I address some of the other grounds of challenge.

This ground of challenge is advanced on behalf of all three Claimants. In the case of O’Brien, his application sought compensation for non-pecuniary loss by reference to loss of liberty simpliciter, damage to reputation, injury to feelings, the consequences of imprisonment, psychiatric injury, misconduct by the police and aggravated damages. In his assessment, Lord Brennan awarded £200,000 for non-pecuniary loss. He itemised £55,000 to be in respect of psychiatric injury, separating it out because it alone attracted interest. Of the balance of £145,000 he said that £125,000 was for consequences of imprisonment and £20,000 for the conduct of the investigation. In the case of Michael Hickey he broke down the gross figure of £250,000 in order to separate out the figure for psychiatric injury (£75,000) for interest purposes and he also specified that £35,000 related to aggravating features of the case. As regards Vincent Hickey, he made clear that £50,000 of the gross £190,000 related to psychiatric injury, again for interest purposes, but did not itemise the balance. In all three cases he declined to accede to requests for a further breakdown.

There is something of a history to this aspect of the case.

During most of Sir David Calcutt’s period as independent assessor, he too adopted the approach which Lord Brennan took in the present cases. However, in the last major assessments made by him before retirement, a review of his earlier assessments in relation to “the Birmingham Six”, Sir David took a different view. It was clearly based on developments in the law of damages apparent from recent decisions of the Court of Appeal between 1997 and 2000 including Thompson v. Commissioner of Police for the Metropolis [1998] QB 498 and Commissioner of Police for the Metropolis v. Gerald (unreported, 10 June 1998). Sir David stated that he “must accordingly take these (and other) authorities into account”. He referred to the “analogous principles” requirement of paragraph 5, observing that “the problem, in practice, is to determine what those principles are”. He then turned to aggravated damages and the question of breakdown. He said:

In his Assessment in O’Brien, Lord Brennan referred to various factors which may play a part in the assessment of statutory compensation for non-pecuniary loss but added:

Miss Williams, supported by Mr. Engleman, seeks to attack Lord Brennan’s approach in a number of ways. At the forefront of her impressive submissions lies the point which seems to me to have been the rationale of Sir David’s change of approach. It is the requirement to apply “principles analogous to those governing the assessment of damages for civil wrongs”. In Thompson, as illustrated in Gerald, the courts were concerned with the most cognate civil wrongs. They established an analogous principle based on greater transparency. Accordingly, Lord Brennan erred in law by refusing to apply it. In response, Mr. Tam relies on his narrow approach to “analogous principles” (which I have rejected) and, essentially, upon Lord Brennan’s reasoning.

In my judgment, Miss Williams has correctly identified an analogous principle which the independent assessor is obliged to apply. The principle 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). Miss Williams has also provided a transcript of a first instance decision of a judge sitting alone on a civil action against the police and applying the Thompson approach: Washington v. Commissioner of Police for the Metropolis (Central London County Court, 31 January 2003, HHJ Michael Dean QC). 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 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 feelings and aggravated damages in discrimination cases and the recent decision of the Court of Appeal in Vento v. Chief Constable of West Yorkshire Police (No2) [2002] 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.

In his reasoning, Lord Brennan repeatedly refers to the inflationary effect of an itemised approach and the risk of double counting. However, the principle in Thompson addresses that effect and that risk with the warning that:

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 decision can be taken 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.

For all these reasons, this ground of challenge succeeds. It was also put on the alternative bases that the refusal to itemise breached Article 6 of the ECHR, that it amounted to discrimination by reference to Article 14 combined with Article 6 (because of the more favourable treatment of the Birmingham Six) and that it breached a public law requirement of consistency. I confess to less enthusiasm for these submissions but, in the event, it is unnecessary for me to rule upon them.

I shall attempt to subsume under this heading a number of challenges on submissions which have as their common theme the approach of Lord Brennan to aggravating features. As I described earlier, in the case of Michael Hickey there was an itemised uplift by reference to aggravating features but in the cases of O’Brien and Vincent Hickey there was not.

I turn first to the case of O’Brien. Plainly his application raised the issue of aggravating features. In his assessment, Lord Brennan referred to injury to feelings (including loss of dignity, humiliation and despair at the failure of the criminal justice system), damage to reputation and aggravating features, particularly the oppressive manner in which the investigation “may well have been conducted”. The £200,000 awarded in relation to non-pecuniary loss includes £55,000 for psychiatric illness and “a modest compensatory element in relation to the conduct of the investigation of £20,000”. The remainder - £125,000 – is allocated on a non-itemised basis to “the consequences of imprisonment”. This provoked the complaint that, one way or another, Lord Brennan had not grappled with the injury to feelings, damage to reputation and the type of matter which commonly results in an award of aggravated damages at common law on the basis explained in Thompson, namely “aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award” (p516B). Lord Brennan revisited this issue in his addendum:

I hope I do no injustice to Miss Williams’ submission on this issue if I paraphrase it thus: Lord Brennan has stuck too closely to a personal injury analysis, where aggravated damages rarely feature, and by so doing has depressed the award in relation to non-pecuniary loss in a way which ought not to have happened if he had had proper regard to Thompson and the approach of the courts in similar cases. This then gives rise to the further submission that, on the assumption that the £125,000 includes compensation for injury to feelings and damage to reputation, in addition to loss of liberty for over eleven years, the amount for loss of liberty is irrationally low. Alternatively, if it does not include compensation for injury to feelings, damage to reputation and all aggravating features apart from the conduct of the investigation, then it is flawed for that reason.

The “irrationally low” submission is based on the length of the loss of liberty. In Thompson, the guideline was stated to be about £3000 for a person wrongly kept in custody for 24 hours, with a reducing scale for subsequent days. Of course no one is suggesting that it is appropriate to multiply a daily or weekly figure over a period of 11 years. Instead, Miss Williams seeks to draw a comparison with longer periods of unlawful custody such as the award in Lunt v. Liverpool City Justices (unreported, 5 March 1991, CA, where £25,000 was awarded in respect of 42 days’ imprisonment for non-payment of rates) and R v. Governor of Brockhill Prison, ex parte Evans (No2) [1998] 4 All ER 993 (59 days unlawfully added to lawful sentence: £5000). Once again, no one is contending for a multiplier. Miss Williams’s submission is that, accepting the concept of a diminishing rate, awards in relation to long-term imprisonment should bear some relationship of proportionality and, if they do not, those who have suffered long-term imprisonment will be left with a legitimate sense of grievance by reference to an irrational disproportionality.

There is no doubt that the award of £125,000 includes something in respect of injury to feelings and damage to reputation. Lord Brennan referred to such matters as an “entitlement” in the Assessment. However, they are not separately quantified. Whether, and if so to what extent, that figure includes anything for “aggravating features” over and above those “entitlements” is unclear to me. The addendum rather obfuscates the issue.

All this drives me to the following conclusions: (1) unless and until it is further itemised, it cannot be said that whatever part of the £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 reasons 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 be 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.

So far as Vincent Hickey is concerned, the challenge under this heading, as I understand it, is limited to the failure to itemise the gross £190,000 awarded for non-pecuniary loss, save by reference to the £50,000 which represents psychiatric injury. Lord Brennan has made it clear that he has not made an award for aggravating features in this case because most of his grounds of appeal to the Court of Appeal Criminal Division failed and he succeeded on a single ground related to his alibi. The Court of Appeal rejected his principal ground of appeal that his own confessions to the Police were inadmissible. Mr. Engelman does not suggest that Lord Brennan erred in this regard. 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.

The position in relation to Michael Hickey is different because, in his case, the gross figure of £250,000 in respect of non-pecuniary loss was broken down into psychiatric illness (£75,000), “all factors other than psychiatric illness” (£140,000) and “a moderate uplift for aggravating features” (£35,000). Mr. Engelman submits that the figure of £35,000 is irrationally low. He relies on a passage in Thompson that “in the ordinary way, we could not expect the aggravated damages to be as much as twice the basic damages” (p516F). However, that seems to me to be 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 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 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.

When considering non-pecuniary loss in the O’Brien case, Lord Brennan had “some”, albeit “limited” help from the false imprisonment and personal injury cases but did not think that 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”. “The recent Court of Appeal approach” is a reference to John v. MGN Ltd [1997] QB 586. When Lord Brennan returned to the subject in the addendum, he said that

I do not find this to be a sustainable challenge. Whilst it is true that an award for compensation under section 133 will usually include something for harm to reputation, which is specifically referred to in subsection (4A), it is not its very essence, as it is in a libel case. In the case of O’Brien , Lord Brennan rightly, or at least permissibly, took the view that compensation for non-pecuniary loss should reflect “primarily….loss of liberty, together with compensation for the injury done to his mental health, injury to his feelings (including loss of dignity, humiliation, frustration, helplessness and despair) and harm done to his reputation or standing in the community”. These elements, save for injury to mental health, went to make up that part of the award described as “£125,000 for the consequences of imprisonment”. There is no doubt that Lord Brennan considered whether libel damages are truly analogous. In my judgment it was not irrational of him to conclude that they are not. It is implicit in that conclusion and in the assessment read as a whole that the rationale behind this part of his decision was that to compare compensation for a miscarriage of justice with damages for libel is not to compare like with like, at least partly because of the less central role played by the reputation element in the former.

This ground is relied upon by all three Claimants. Lord Brennan dealt with the point in the same terms in each of the assessments. He said:

The first point made on behalf of the Claimants is that Lord Brennan erred when he said that he was applying a principle which “accords with the common law approach”. The case of Hodgson v. Trapp simply established that, in relation to damages for past and future care, attendance and mobility allowances should be deducted because they were to be regarded as available to meet the cost of care generally and thus as mitigating the damages recoverable in respect of the care. Miss Williams submits that the true analogy is to be found in Dews v. National Coal Board [1988] AC1, in which Lord Griffiths said (at p 14F):

Mr. Tam does not seek to take issue with that principle in the law of damages. He submits, no doubt correctly, that the development of the law in relation to what is and what is not deductible from an award of damages is often driven by policy rather than logic. He places some reliance on Hunt v. Severs [1994] 2 AC 350, although it seems to me that neither the policy nor the logic of that case is analogous to the present case. His central submission is that Lord Brennan’s logic is beyond dispute – to the extent that a prisoner would have spent part of his earnings on living expenses if he had been at liberty, that expenditure has been avoided during his incarceration. Accordingly, it is logical for compensation to take that into account. Moreover, Lord Brennan was entitled to derive support for that approach from Meah v. McCreamer. At the very least, it has not been shown that it was not open to him to decide as he did.

The amount of reliance which can be placed on Meah v. McCreamer for present purposes, is very limited indeed. What it rests on is no more than a concession by counsel in that case. Woolf J said (atp383F):

In my judgment, it is inescapable that, when Lord Brennan decided to discount for saved living expenses, he believed that he was applying a common law principle. However, because Hodgson v. Trapp does not in fact support the principle and because Dews v. National Coal Board is authority for a contrary principle (and is House of Lords authority postdating Meah v. McCreamer), I have to conclude that he misdirected himself as to the common law. By the time he came to revisit the point in the addendum, he had been referred to Dews. However, what he said by way of further explanation does not suggest that he was abandoning his erroneous belief. I infer that it was probably continuing to influence his approach. For these reasons his decisions in all three cases relating to saved living expenses must be quashed.

Section 133(4A) requires the assessor, when assessing the part of the compensation attributable to “suffering, harm to reputation or similar damage”, to have regard to“….(c) any other convictions of the person and any punishment resulting from them”. This does not arise in the case of O’Brien who had no convictions. However, it was an issue in relation to both Hickeys. On the occasion when he was convicted and sentenced in relation to the murder of Carl Bridgewater, Michael Hickey was also sentenced for two offences of robbery during which a firearm had been used. For those, he received a concurrent sentence of twelve years’ detention. Lord Brennan said:

In 1979, Vincent Hickey pleaded not guilty to the one armed robbery with which he was charged (that is, one of the two for which Michael Hickey was sentenced) and it was ordered to lie on the file. However, during the appeal hearing in 1997, he admitted through his counsel that he had been a participant in that offence. Lord Brennan concluded that if Vincent Hickey had been sentenced for that offence in 1979, absent the murder conviction, he would have received a sentence of eight years imprisonment. Lord Brennan referred to the gravity of that offence and added:

The first point advanced by Mr. Engelman is one of statutory interpretation. He submits that section 133(4A) does not permit a deduction from all categories of non-pecuniary loss simply because of the words “…or similar damage” and that deduction can only be applied to damage which is similar to “suffering” and “harm to reputation”. He accepts that, for example, personal injury and injury to feelings are so “similar” but contends that damage arising from misconduct by the authorities, the fact of loss of liberty and aggravated damages are not and that they cannot therefore attract the deduction. I am wholly unpersuaded by this and 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. No other construction is justified by the context.

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 deductions 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. Like Michael Hickey, Robinson pleaded guilty to the two offences of armed robbery. In his case the concurrent sentences were of fifteen years imprisonment. In addition a six month suspended sentence for burglary was activated. Sir David said:

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.

Although Lord Brennan did not refer to the Robinson deduction in his assessments in the Hickey case, he did so in the addendum when responding to the representations which had been made. He said:

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 – age at the time (17 and 24 as against 45), previous records and experiences of imprisonment, and the fact that Vincent Hickey had been involved in one rather than two armed robberies.

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.

It seems to me that Lord Brennan’s approach in the present case was akin to that of a later sentencing judge who considers that the earlier sentencing judge was too lenient in relation to the indistinguishable co-accused. He simply disagreed with the 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 rests on the fact that deductions which were permissible in all other respects compare unfavourably with a more generous approach by a different assessor to a co-applicant. It follows that this ground of challenge fails.

This ground of challenge is advanced on behalf of Vincent Hickey and is sought to be advanced by way of amendment on behalf of O’Brien. It does not arise in the case of Michael Hickey whose position is safeguarded by the Court of Protection. The submission is that Lord Brennan fell into legal error when he rejected claims for compensation to include an amount in respect of the cost of independent financial advice concerning the investment of the large sums of money which the awards of compensation place in hands inexperienced in investment. In the case of Vincent Hickey, Lord Brennan said:

The case for Vincent Hickey is that, understandably, he lacks financial expertise and the ability to make the best investment decisions in relation to a six figure sum. In these circumstances, Lord Brennan fell into legal error when he refused to award a sum by reference to the cost of financial advice. Mr. Engelman draws attention to a determination of Sir David Calcutt in the unrelated case of E in which Sir David accepted that the applicant needed financial advice and made a substantial award towards the cost of it. He further submits that appropriate advice is needed at this stage for a varied portfolio to enable even 2.5% to be achieved. Although he was able to point to dicta in a number of authorities, he was unable to establish a principle in the current law of damages to the effect that, in comparable circumstances, independent financial advice to a claimant who is neither a patient nor a minor is recoverable. Absent such a principle, I do not accept that Lord Brennan fell into legal error when he rejected this aspect of Vincent Hickey’s claim.

So far as O’Brien is concerned, this ground of challenge was foreshadowed in correspondence but not in the claim form and Miss Williams seeks permission to amend and to apply. I grant permission for both. There is evidence that O’Brien has been profligate and imprudent, indeed disastrously so, with his interim payments and this, it is submitted, points to the necessity of financial advice . However, that is not the issue. The issue is whether it was legally erroneous to reject the cost of such advice as a subject of compensation. In my judgment, it was not.

The claim on behalf of Michael Hickey included an item in the sum of £589 representing counselling costs incurred by his mother arising out of his imprisonment. Lord Brennan rejected this item stating that

I do not consider that campaign costs are analogous. They are incurred on behalf of the victim of the miscarriage of justice and are provided for in the Note by the reference to “any expenses, legal or otherwise, incurred by the claimant in reversing his conviction”. Travelling expenses for the immediate family are also provided for in paragraph 5.1(d).

If an immediate family member’s counselling were to be recoverable, upon what basis could the independent assessor refuse to compensate such a family member in respect of the enormous loss and damage resulting from a long-term breakdown in mental or physical health which was caused by the conviction? Whilst one sympathises with family members who undoubtedly suffer greatly by reason of the unjustified imprisonment of one of their own, there must be limits to the extent to which this scheme is required to compensate. In my judgment Lord Brennan was correct to limit the award by reference to expenditure incurred in acting on behalf of the Claimant. I agree with the relevance of his observation that section 133 refers to compensation “for the miscarriage of justice” and provides that such compensation should be paid “to the person who has suffered punishment” as a result of the conviction. He was right to conclude that the mother’s counselling costs were not recoverable under the scheme. They are not recoverable by reference to “principles analogous to those governing the assessment of damages for civil wrongs”. In seeking to argue to the contrary, Mr. Engelman relies on Jarvis v. Swan Tours Ltd. [1973] QB 233 but that involved a contractual claim and a context as far away from the present one as it is possible to imagine.

This ground of challenge is sought to be advanced by Mr. Engelman on behalf of both Hickeys. I say “sought to be” because it did not form part of the applications as originally pleaded and it cannot be advanced without permission to amend. Notwithstanding that Mr. Tam objected to such amendment, I grant permission. If the point is not resolved in this case, it will probably arise in another and clarification at this stage would be beneficial. Moreover I do not accept that Lord Brennan has not had a chance to deal with the point. It was in issue before him and he resolved it against the Hickeys in his assessments. The fact that it was not raised again between the assessments and the addendum does not dispose me against granting permission.

The point is a simple one. The case for the Hickeys is that the correct approach to the calculation of interest is to apply the method customarily applied by the courts in personal injury cases, that is one half of the High Court short term investment account rate, as set out in Jefford v. Gee [1970] 2 QB 130. However, Lord Brennan rejected this in favour of a different approach recommended by Robson Rhodes, the firm of forensic accountants instructed by the Secretary of State to produce a report for the assistance of the independent assessor. In his assessment in the case of Michael Hickey, Lord Brennan said:

Mr. Engelman’s submission is that it is not open to an independent assessor who is required “to apply principles analogous to those governing the assessment of damages for civil wrongs” to depart from the principle established in Jefford v. Gee. He points out that the principle is applied in, for example, asbestosis cases which have similar “long-tail” features.

If the principle in Jefford v. Gee were an invariable and inflexible rule, Mr. Engelman would be on unassailable ground. However, as Mr. Tam observes, what Lord Denning MR said (at p147a) is that the principle would produce fairness “in all ordinary cases”. I apprehend that, in the field of personal injury litigation, there are cases in which the principle in Jefford v. Gee is not applied because they are not “ordinary cases” in which the special damages “comprise more or less periodical losses which are continuous from the date of the accident to the date of the trial…more often than not lost earnings” (May LJ in Prokop v. DHSS, CA. unreported, 5 July 1983: see also Kemp and Kemp, The Quantum of Damages, paras 16-019 – 16-022).

In the present case it is readily apparent that the awards in relation to past pecuniary loss in respect of both Michael and Vincent Hickey form much the greater parts of the awards under this heading. The remaining ingredients are smaller and in some cases could not be fixed as representing particular amounts in particular years. This is expressly so in relation to, for example, campaign expenses.

In my judgment, an independent assessor must be free to depart from the Jefford v. Gee principle, just as the courts sometimes do in personal injury cases, where the remorseless application of its arithmetic would produce a result which would be unfair to one side or the other. There is no doubt that Lord Brennan considered that to be the case here. The question therefore becomes: was that a rational conclusion? I consider that it was. The Robson Rhodes report identified and explained the unfairness which would flow from the application of the Jefford v. Gee principle. Lord Brennan adopted that reasoning. Mr. Engelman has not demonstrated any flaw in it. He simply contends for Jefford v. Gee on the basis that there is no reason to depart from it. As a reason has been advanced and has not been exposed as fallacious, it has not been established that Lord Brennan acted irrationality in relation to interest.

This is a lengthy judgment in a multi-faceted case in which no party has been wholly successful or wholly unsuccessful. This may raise difficult questions in relation to relief and costs. If they can be resolved by consent or after brief submissions, that can be done on the occasion when the judgment is handed down. If, on the other hand, they will require longer submissions, they will have to wait until the first week of next Term.

Finally, and as a postscript, I feel it right to say that I have considerable sympathy with Lord Brennan in this case. It seems to me that many of the difficulties arose because of the not entirely helpful way in which section 133 and the Note are expressed. To identify and apply analogous principles, transplanting them from adversarial litigation to the rather inquisitorial, or at least non-adversarial, context of an assessment under section 133 is by no means easy. It may well be that a degree of clarity might be brought to bear if the Secretary of State were to rewrite the Note so as to promulgate clear guidance in the light of recent developments in the law of damages and a coherent policy as to the relationship between the statutory scheme and civil causes of action. At the moment, the scheme seems to be based on the common law, thereby suggesting that one of its aims is to obviate the need for civil actions but, on the other hand, it is made clear that civil causes of action may still be pursued.