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

These two claimants have both been wrongly convicted and claimed compensation after their convictions had been quashed. The claimant Darren Hall was convicted at Cardiff Crown Court on the 20^th July 1988 of murder and robbery and sentenced to custody for life. Ultimately, on a reference by the Criminal Cases Review Commission, the convictions were quashed on the 25^th January 2000. He was in custody from the time of his arrest on the 10^th November 1987 until the 23^rd December 1998 when he was released on bail pending his appeal, a total of 11 years and 1 month in prison. On the 23^rd August 2006, the defendant determined that he should receive a total of £195,000 for his non-pecuniary loss. He was also awarded a sum for his pecuniary loss, which forms no part of this application. The claimant Stephen Miller was convicted in 20^th November 1990 of murder and sentenced to life imprisonment. His conviction was quashed on appeal on the 10^th December 1992. He had been in custody for a total of 4 years and 1 month when ultimately released. On the 7^th September 2007 the defendant made an award which included the sum of £55,000 for loss of liberty, which is the only aspect of the award with which we are concerned.

The claimant Hall made his application for compensation under section 133 of the Criminal Justice Act 1988. This provides for compensation, in accordance with the International Covenant on Civil and Political Rights, to be paid where a conviction has been reversed, or the claimant has been pardoned, on the ground that a newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. This entitlement only arises, for present purposes, when the conviction was quashed on an appeal out of time or on a reference by the Criminal Cases Review Commission. The claimant Miller made his claim under the discretionary scheme which the Secretary of State for the Home Department then operated in tandem with the statutory scheme, whereby compensation is payable for a period in custody following wrongful conviction or charge where that resulted from serious default on the part of a member of the police force or some other public authority or where there were other exceptional circumstances which justified compensation. A helpful summary of the history and content of the two schemes was given by Laws LJ in R (Bhatt Murphy and Others) v Independent Assessor [2008] EWCA Civ 755 paragraphs 4-8. It is not necessary for the purposes of this judgment to repeat that history. It is sufficient to note that the claimant Miller claimed under the discretionary scheme because his conviction was quashed on an appeal which had been brought in time, and therefore did not fall within the statutory scheme.

Both schemes envisage that compensation will be assessed by the Independent Assessor for the time being. For the statutory scheme provision is made for such assessment in section 133 (4) of the 1988 Act, and is governed by the provisions of schedule 12 to the Act. Compensation under the discretionary scheme has been assessed in practice in the same way. Under the Act there have only been two assessors, Sir David Calcutt Q.C. and Lord Brennan Q.C., the present defendant. The only guidance given in the 1988 Act as to the assessment of compensation is contained in section 133 (4A) which provides:

“In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to-

a)

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

b)

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

c)

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

That is all the guidance given by the 1988 Act. However, the Secretary of State has consistently informed successful applicants for compensation, whether under the statutory scheme or the discretionary scheme, that in reaching his assessment, “the Assessor will apply principles analogous to those governing the assessment of damages for civil wrongs”. The effect of the use of this phrase in the material provided to applicants was considered by this court and the Court of Appeal in R (on the application of O’Brien and Others) v Independent Assessor: the judgment of Maurice Kay J in this court is reported at [2003] EWHC 855 (Admin); the judgments in the Court of Appeal are reported at [2004] EWCA Civ 1035 [2004] All ER (D) 531 (Jul). At this stage in the judgment it is only necessary to say that the decision of the Court of Appeal concluded that the phrase meant that, as the head note to the All England Reports states:

“(1)

The Independent Assessor should, save where the circumstances of the case before him rendered it unjust or otherwise inappropriate, apply principles for the assessment of damages for loss at common law whenever such principles were clear and capable of application by analogy. In relation to non-pecuniary heads of loss, that would usually involve consideration of principles of the assessment of damages for malicious prosecution and/or false imprisonment. Where the facts and/or the law did 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 had reached his award, giving as much information as to its make up as the nature of the claim and facts permitted.

(2)

There were some broad objectives that an Independent Assessor should keep in mind when fashioning the make up of any assessment (i) to explain as well as circumstances permitted how he had reached his overall award, including, where practicable, its make up as between different elements; (ii) 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; (iii) the need to identify separate sums in the award for loss of liberty and for other significant and self contained aggravating features, to be identified and assessed individually or, at least, in the aggregate; and (iv) to look to the civil law in each case to see whether there was an analogous and clear principle that might assist in the assessment.”

There is no complaint in the present case that the defendant has failed adequately to describe and set out the heads of non-pecuniary loss which make up the overall award. But both claimants assert that the amount that the defendant awarded for loss of liberty wholly failed to meet the requirement that it should be proportionate to, or in line with, awards made in cases of false imprisonment or malicious prosecution which are capable of being relevant analogies, that he failed accordingly to apply the right principles, and that he awarded sums under this heading which were unreasonably and irrationally low. The claimant Hall in addition complains about the element in the overall award for non-pecuniary loss, which is the sum of £10,000 for what the defendant described as the claimant’s sense of injustice and the distress of the prosecution process.

In both awards, the defendant discusses how he should approach the problem of assessment of compensation in these cases in identical terms. It seems to me that in order to evaluate the claimant’s arguments and in fairness to the defendant it is necessary to set out the relevant paragraphs in full.

“6.

The Court of Appeal in the judicial review case involving the applicants O’Brien and Hickeys set out guidance for assessments under the scheme to include reasons; where appropriate consideration of any analogy with common law torts; where appropriate breakdown of the award, and separate consideration of aggravating factors by analogy with aggravated damages.

The Court of Appeal described the assessment of damages as highly fact sensitive, imprecise and artificial. “It is a barely respectable intellectual exercise” – see paras 37/38.

7.

I bear in mind that adequate reasons should be given to show what has gone into an award. The reasons should show what weight has, and what has not, been given to any particular factor. I therefore identify the matters which go to make up the award for non-pecuniary loss. In doing so it falls to me to review the overall amount as to whether it provides proper compensation and also to avoid any overlap between different particular factors. I have taken into account the principal authorities of Thompson, ex parte Evans, and note in passing the recent Court of Appeal decision in Richardson v Howie (2004) EWCA Civ. 1127.

I have particular regard to paragraphs 78, 81 and 82 of the judgment of Auld LJ in Hickey and O'Brien and the artificiality of 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.” There follows a firm caution against the risk of double-counting and the cumulative effect of any aggravating features. All this reflects his prior approach:

(a)

at para.78 “As to awards for so-called loss of liberty simpliciter (see paras 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.”

(b)

at para 79 the need to separate out wherever possible the award for “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.”

(c)

at para 80 “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.”

8.

The essential principle from Thompson in terms of loss of liberty is that at page 515 of the report at 1998 QB. The Court of Appeal was giving guidance on awards in respect of short periods of imprisonment in respect of the tort of wrongful arrest and imprisonment. Where the court spoke of the approach in “straightforward cases” it noted that "for subsequent days the daily rate will be on a progressively reducing scale". This embodied the principle of a tapering down as imprisonment continues. This is not to under-estimate continuing imprisonment but rather to allow its first impact properly to be reflected in the initial larger component in the award. Guidance is also to be had by ensuring that any "reducing scale" should be considered "so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for his initial shock of being arrested".

In the most recent Court of Appeal case of ex parte Evans the Court of Appeal concluded that £5,000 was appropriate for 59 days extra in prison based on a failure properly to calculate the sentence. At page 1005, of 1998 4 All ER, Lord Woolf expressly rejected an invitation to indicate a daily or weekly amount for unlawful imprisonment so as to provide a guide for other cases. The court awarded £5,000 as "a global figure". He went on "we discourage" any exercise of working out daily, weekly or monthly figures". He went on "No two cases are the same. The shorter the period, the larger can be the pro rata rate. The longer the period, the lower the pro rata rate". The other two members of the Court agreed with Lord Woolf, and in the House of Lords this approach to damages was accepted.

I have considered the decision of Buckley J. in Popat v. Barnes (2004) EWHC 741.The finding on damages is of no assistance. The action was for professional negligence. The damages award was not analysed nor reasoned.

It therefore falls to me to consider an appropriate award. I conclude as did Auld L.J. (see above) that in most cases there is no proper distinction to be drawn between loss of liberty and the ordinary consequences of conditions of imprisonment and injury to feelings and damage to reputation, and family disruption. However in some cases some distinctions can be drawn so as to justify particular additional factors which go to increase what would otherwise be the usual basic award.

9.

As to Thompson, Gerald and similar cases I have had regard to the essential elements of the torts of false imprisonment and malicious prosecution. False imprisonment embraces a damages award for loss of liberty itself, injury to feelings and affront to dignity, the conditions and effects of imprisonment, personal hardship, and depending on the case damage to reputation. Malicious prosecution involves the distress of facing criminal proceedings and trial and any consequent appeal, damage to reputation, inconvenience, the suffering of part or all of a sentence, and thereby the loss of liberty and the conditions and effects of imprisonment. Where the two torts may apply to a case there are clear and wide ranging areas of overlap.

As to the guidance from Thompson and Gerald the following is clear:

(a)

The experience in ordinary personal injury cases is directly relevant – 512B and C – and awards in such cases may be cited to the judge in the absence of the jury to help in guidance to them by the judge “because of the resemblance between the sum awarded in false imprisonment cases and personal injury cases”- 515 B/C

(b)

Aggravated damages are “primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated. This injury is made worse for the plaintiff because it is more difficult to excuse when the malicious motives, spite or arrogance on the part of the police” – 512E;

(c)

The Court distinguishes between basic damages and aggravating damages which can only be awarded “where they are claimed by the plaintiff and where there are aggravating features in the defendant’s conduct which justify the award of aggravated damages” -514H;

(d)

The Court dealt with “straightforward cases” of wrongful arrest and imprisonment in determining the appropriate level of damages for actual loss of liberty or for the wrongful prosecution. After the first hour of wrongful arrest and imprisonment an additional sum is to be awarded but that sum “should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to a higher rate of compensation for the initial shock of being arrested” – 515D/E;

(e)

In the case of malicious prosecution the figures start at about £2,000 and for prosecution continuing for as long as 2 years, the case being taken to the Crown Court, an award of about £10,000 could be appropriate. If a malicious prosecution results in a conviction which is only set aside on appeal this will justify a larger award to reflect the longer period during which the plaintiff has been in peril and has been caused distress – 515H/516A;

(f)

Aggravated damages can be awarded “where there are aggravating features about the case which result in the plaintiff not receiving compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or prosecution which shows that they have behaved in a high-handed, insulting, malicious or oppressive manner as in relation to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and trial are conducted” – 516C/D;

(g)

Where aggravated damages are appropriate the figure is unlikely to be less than a thousand pounds. The Court went on “We do not think it is possible to indicate a precise and arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way however we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest” – 516F.

10.

In Gerald it is noted that:

(a)

In dealing with the effect of Thompson the Court of Appeal concluded that ordinarily “sums for aggravated and exemplary damages should be modest and should be subject to certain maxima” (this scheme does not embrace concepts of exemplary damages);

(b)

In that case which went to the Crown Court on appeal and took about a year with findings of police officers giving perjured evidence on both occasions the basic damages for malicious prosecution were held to be £10,000.

11.

The scheme embraces in appropriate circumstances a

component in the award for loss of character or reputation.

However I do not consider that the tort of defamation

provides any, or any significant, analogy in most cases under

the scheme.

(a)

Defamation actions centre on loss of reputation and its effects. But loss of reputation and its effects is also one of the almost-inevitable components of the loss in false imprisonment or in malicious prosecution. Thus, loss of reputation and its effects cannot be regarded as a separate topic if one is starting from an analogy with false imprisonment and malicious prosecution.

(b)

Further, the same features mean that the defamation approach to damages is likely to be far less helpful than the false imprisonment and malicious prosecution approach to damages, as the latter torts are likely to be far better "fits" than the former. The approach to the latter torts allows for the overlap with other consequences of the original wrong which is also a feature of miscarriage of justice cases.

(c)

Moreover, the tort of defamation provides a complex of remedies, of which damages is only one. While a miscarriage of justice may result in some events which are analogous (such as a Court of Appeal Criminal Division judgment which vindicates the person, analogous perhaps to a public statement or apology), the differences are more marked than the similarities, thus further reducing the helpfulness of the analogy.

(d)

Defamation cases also seldom involve allegations of serious criminal conduct, such as are commonly involved in miscarriage of justice cases.

(e)

However, there may well be miscarriage of justice cases in which the specific circumstances of the case suggest that loss of reputation should be regarded as a particularly weighty factor. This will have to be determined on a case-by-case basis.

The Court of Appeal in giving the current guidance on defamation awards in John v MGM Ltd (1996) 2 All ER 35 were clearly concerned at the excessive level of libel awards. They concluded that when assessing compensatory damages in a defamation case a jury could in future properly be referred by way of comparison to the conventional compensation scales in personal injury cases as well as to previous libel awards made or approved by the Court of Appeal, and that there was no reason why the Judge, in his directions, or counsel should not indicate to the jury the level of award which they considered appropriate.

12.In considering a cross check on reasonableness and the overall appropriateness of an award and whether it is proportionate regard is to be had to the current Guidelines on General Damages and Personal Injury Cases (7^th edition). It is noted that the general damages guidelines for quadriplegia are put in the range £175,000-£220,000, reaching the upper end where there is the presence and extent of pain, depression and longer life expectancy (see page 3). The range for very severe brain damage is from £155,000-£220,000 and at the upper end there will be some insight, with a very severe physical and mental disability lasting for life. (See page 5.) The upper range for psychiatric amage is £30,000-£63,000 with major psychiatric problems and a very poor prognosis (see page 11). Total blindness and deafness together are in the region of £220,000 (see page 15). Whilst the award for non-pecuniary loss under this scheme is not to be equi-parated with personal injury awards, they provide guidance as to what is proportionate and reasonable.

In John v. MGN Ltd (1996) 2 All ER 35 the Court of Appeal gave the current guidance at pp52/54 – see 52G and at 54D:

“It is in our view offensive to public opinion, and rightly so, that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable. The time has in our view come when judges, and counsel, should be free to draw the attention of juries to these comparisons”.

I consider a similar approach should be taken in miscarriage of justice awards. It would be similarly offensive to public opinion or a person who has suffered a miscarriage of justice but who has been vindicated and is healthy, or is being compensated for any ill health causing personal injury, to be awarded non-pecuniary compensation which is greater, or substantially greater, than he would receive if rendered as disabled as in the citation.

I reject the proposition that the cross check with personal injury awards is in some way restricted to only the physical consequences of such injury.

13.

(a) I do not consider that the common law necessarily requires a break down of damages by analogy with the torts of false imprisonment and malicious prosecution any further than perhaps a split if appropriate in the award (by analogy with basic and aggravated damages). If a more detailed split is feasible such as in a very short period of imprisonment then it may be practical so to break down the award. But normal damages principles which appear to be common to these cognate torts and to personal injury damages clearly suggest that there are real dangers of dividing up too many disparate parts (especially if overlapping) to create a total damages figure. This is particularly so in cases of longer terms of imprisonment with often very different circumstances.

In any event in a miscarriage of justice such as this case it is impractical to separate the malicious prosecution elements from the false imprisonment elements of compensation as they are nearly all overlapping.

In considering an award for aggravating features the starting point must be that the analogy of aggravated damages involves compensation for a certain type of loss rather than a penalty for certain types of misbehaviour. I am not aware of any authority on these analogous cognate torts where there has been such a break down of aggravated damages. Indeed in Richardson v Howie (2004) EWCA Civ. 1127 the Court of Appeal held that in assault cases aggravated damages should normally not be split from basic damages – the element of loss compensated for by aggravated damages should simply be part of the compensatory award.

Reference to academic texts on damages indicates that whilst identifying components of these cognate torts is desirable in terms of compensation there is no clear or consistent authority as to the amount that should be awarded for individual components (see e.g. the composite figure of £10,000 in Thompson for malicious prosecution leading up to 2 years of proceedings without further break down being given).

(b)

Overlap was acknowledged as a real and significant risk by the Court of Appeal in the leading judgement and is clearly regarded as such in the calculation of general damages. It is a matter of experienced judgment to determine how to take that into account.

(c)

I do not accept claimed amounts arising by way of extrapolation from awards in relation to short terms of imprisonment such as Thompson and Evans applied over many years of imprisonment. This is an entirely artificial exercise which supposes an implicit tariff per year or at least minimum tariff for loss of liberty simpliciter. I do not regard the Court of Appeal decision in this case nor Thompson and Evans to support any such approach.

But in conclusion I reject any suggestion that an ex parte Evans “rate,” or “rate derived from” that case, should apply. There is no reason why the principle of reducing scale or tapering down which is found to an extent in personal injury general damages as well as in these cognate torts should not apply equally to the award in this case. The period of imprisonment here was of an entirely different order of magnitude from that in Evans or Thompson.

(d)

It must be noted that not all miscarriages of justice fit in to the tort of malicious prosecution as some miscarriages of justice occur by reason of matters extraneous to the prosecution process or indeed through simple negligence in relation to evidence and so on. However the distress here referred to is one of the factors in Thompson as forming part of the overall award of £10,000 for a case lasting up to 2 years. There is no indication given in that or any other case as to how this particular head of loss falls to be assessed in terms of amount save that in Thompson a larger amount than £10,000 is appropriate for a period longer than two years. This distress does not realistically continue as a discrete component in a longer term of imprisonment where the general suffering of imprisonment prevails. The distress may return, as here, during the period of any appeal to the Court of Appeal. This I take into account in this application as a component in the basic award.

(e)

But loss of reputation overlaps with injury to feelings and affront to dignity. Damage to reputation in a miscarriage of justice case bites in the sense of the convicted person’s sensitivity of it. However loss of reputation will arise in many cases of false imprisonment by the detention becoming publicly known. Loss could arise by analogy under either false imprisonment or malicious prosecution. But regard must be had to the vindication of reputation in the most public way achieved by a final quashing of a conviction by the Court of Appeal. I refer back to the conclusions in para. 9 above.

It is not correct in my view that the effects of imprisonment such as hardship or interference with family life should be regarded as specific items to be included under an aggravating factors award by analogy with aggravated damages. These items of loss in essence are part and parcel of the loss involved when a person is imprisoned for any longer period of time. Whether or not they are special or unusual in a particular case depends on the facts. There may be particular features of the case which are arguably of particular weight. To that extent they fall appropriately as factors in the assessment of general or basic compensation.

I now proceed to identify the matters which go to make the award which I propose to make.

I will consider the analogy of the cognate torts of false imprisonment and malicious prosecution.

I will determine whether it is practicable in this case to break down the award into specific sub-awards for different components.

I further deal with aggravating factors in the case by analogy with a claim for aggravated damages.

Reasons and explanations will be given.

Finally I will review the overall award to consider whether in the light of all the factors that go into it its overall amount is proper compensation, and so far as it is possible overlap and double-counting have been avoided.”

The defendant then proceeded to identify in each case the elements of the claim that he considered could properly be identified as entitling the claimant to specific sums. In the case of the claimant Hall, leaving aside what he described as aggravating factors analogous to those which in common law could justify aggravated damages, these were:

“(a)

loss of liberty for just over 11 years.

(b)

the conditions and effect of imprisonment and the personal hardship arising including loss of family life.

(c)

injury to feelings and affront to dignity.

(d)

damage to reputation.

(e)

the distress and inconvenience of prosecution, trial and appeal.”

He expressly identified the fact that (a) to (d) would be components of a court’s award for false imprisonment and malicious prosecution and (e) was particular to malicious prosecution. For these he considered that a total award of £175,000 was appropriate. He broke this down as follows. For loss of liberty, he awarded £125,000. He concluded that the conditions of imprisonment were particularly onerous and awarded an additional £12,500 to reflect this. He concluded that the disruption to the family life of this claimant, who was young at the time, was particularly marked and justified an award of £12,500. For damage to reputation, he awarded £15,000. Finally he made the disputed award of £10,000 for the sense of injustice and distress of the prosecution process. To these sums he added £20,000 as a further award by analogy with an award for aggravated damages.

In relation to the award for loss of liberty, he said as follows:

“I conclude that £125,000 is a fair and proper global figure in this case. In considering its appropriateness and whether it is proportionate and as a cross check to its reasonableness I consider the current Guidelines on General Damages. The figure I have set out is similar to the lower range of a paraplegia award. This is not intended to be a comparison or equi-paration of an award but an indication of that which is proportionate and reasonable. In my view the figure of £125,000 takes into account during the years in question the initial impact of imprisonment and the reasonable reduction or tapering as time goes by but always taking into account that any imprisonment continues to be suffering as it continues both in terms of loss of liberty and the usual conditions of imprisonment.”

As to the sum of £10,00 he said:

“This young man had a sense of injustice as time went by and I have come to the conclusion that a further separate award is justifiable in relation to injury to feelings and mental suffering which I assess in the sum of £10,000 which takes into account an element for the distress of the prosecution process.”

In the case of the claimant Miller, he said in relation to the award for loss of liberty as follows:

“The starting point is what I think is reasonable compensation for about 4 years and a month of loss of liberty and the consequences of imprisonment which usually arise in any sentence of imprisonment but without the matters to which I give special weight. I conclude that £55,000 is a fair and proper global figure in this case. In considering its appropriateness and whether it is proportionate there is a cross check to its reasonableness from the Guidelines for General Damages for Personal Injury. The figure of £55,000 is at the top of the range for severe psychiatric injury. This is not intended to be a comparison or equi-paration of an award but an indication of that which is proportionate and reasonable. In my view the figure of £55,000 takes into account during the months in question the initial impact of imprisonment and a reasonable reduction or tapering as time goes by but always taking into account that any imprisonment continues to be suffering as it continues both in terms of loss of liberty and the usual conditions of imprisonment.”

In one sense the claimants’ argument is straightforward. Given that the defendant accepted that he should take into account the damages awards in the most analogous torts, mainly false imprisonment and malicious prosecution, and to an extent, defamation, he wholly failed to give effect to the courts’ awards in such cases or identify any other yard stick other than by reference to awards in personal injury cases. He would appear, it is submitted, to have taken the latter as a starting point rather than simply as a means of cross-checking in order to ensure that the award was proportionate.

The claimants rely in large part on the decision of the Court of Appeal in the cases of Thompson and Hsu, usually cited as Thompson v Commissioner of Police of the Metropolis [1998] QB 498. In the case of Thompson, the plaintiff was lawfully arrested, but subsequently manhandled and assaulted by police officers and wrongly detained in a cell for four hours. She was then charged with assault occasioning actual bodily harm; but at trial seven months later she was acquitted of a substituted charge of assaulting an officer in the execution of his duty. She claimed damages against the defendant for false imprisonment and malicious prosecution. The jury awarded her damages, including aggravated damages, in the sum of £1,500, and exemplary damages in the sum of £50,000. In Hsu the plaintiff was unlawfully arrested, assaulted and abused then wrongly detained in a police cell for an hour and a half. He claimed damages for wrongful arrest, false imprisonment and assault. A jury awarded him damages in the sum of £20,000 including aggravated damages, and made a further award of £200,000 by way of exemplary damages. In the first case the Court of Appeal increased the award of damages including aggravated damages to £10,000 but reduced the award for exemplary damages to £25,000. In the second, the award of exemplary damages was reduced to £15,000.

The court expressly gave guidance as to the levels of award which would be considered reasonable in such claims. It endorsed the practice adopted in libel actions since the decision of the Court of Appeal in John v MGN Ltd [1997] QB 586 of giving some guidance to the jury as to the level of awards in personal injury actions as a yardstick by which to calibrate their award, a practice which had been endorsed for malicious prosecution and false imprisonment actions by Stuart-Smith LJ in Scotland v Commissioner of Police for the Metropolis in The Times 30th January 1996. Lord Woolf suggested the following figures in a passage starting at page 515 D:

“(5)

In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for twenty four hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate would be on a progressively reducing scale…

(6)

In the case of malicious prosecution the figure should start at about £2,000 and for prosecution continuing for as long as two years, the case being taken to the Crown Court, an award of about £10,000 could be appropriate. If a malicious prosecution results in a conviction which is only set aside on an appeal this would justify a larger award to reflect the longer period during which the plaintiff has been in peril and has been caused distress.

…

(10)

We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than £1,000. …

…

(13)

Where exemplary damages are appropriate they are unlikely to be less than £5,000… In this class of action the conduct must be particularly deserving of condemnation for an award as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.”

Further guidance, it is submitted, can be gained from the Court of Appeal’s decision in R v Governor of Brockhill Prison ex parte Evans (No. 2) [1999] QB 1043. In that case the length of the sentence which the applicant had to serve had been wrongly computed, as a result of which she spent fifty nine additional days in custody. This was therefore what might be called a pure false imprisonment case. The court referred not only to Thompson (supra) but also to an unreported case, Lunt v Liverpool City Justices (unreported) 4 March 1991; Court of Appeal (Civil Division) Transcript No. 158 of 1991. The latter was a case in which the Court of Appeal increased an award of £13,500 to £25,000 for a period of 42 days false imprisonment in respect of an alleged default in the payment of rates where the appellant was of good reputation and none of the imprisonment was justified. The experience was described by the court as “horrific”. At first instance in Evans (supra) Collins J declined to propose an amount for each extra day in prison and considered that a global approach was correct. He awarded £2,000. The Court of Appeal, while endorsing the judge’s approach that the award should be a global figure and not arithmetically computed, concluded that £2,000 was well below the appropriate award, and increased it to £5,000. This was not disturbed by the subsequent decision of the House of Lords.

Whilst accepting that these authorities make it clear that it is inappropriate to apply an arithmetical approach to the assessment of an award in cases such as those with which we are concerned, it is submitted that nonetheless these decisions indicate that the defendant has grossly undervalued the appropriate compensation. The claimants accept that the defendant was entitled to have regard, but only by cross-check, to the awards for personal injuries; but it is submitted that he would appear in the way that the awards were structured to have used the personal injury awards as the only yardstick, which, it is said, was wrong in law. The appropriate awards for loss of liberty should have been £250,000 for the claimant Hall and £125,000 for the claimant Miller.

So far as the award for the claimant Hall’s injury to feelings and mental suffering is concerned, that, it is submitted, is also clearly out of line with the figure envisaged by the Court of Appeal in Thompson (supra). This award is akin to damages for malicious prosecution, which was considered to justify in 1996 an award of £10,000 if proceedings were prolonged and more than £10,000 if there was a conviction. It must follow, it is submitted, that £10,000 is a completely inadequate award where the conviction is not overturned until many years later.

The assessment of damages or compensation for non-pecuniary loss always raises the fundamental problem that like is not being compared to like. But it seems to me that, as the court recognised in John (supra) in the field of defamation, there can only be public confidence in the integrity of the legal system overall if awards for non-pecuniary loss in the different scenarios in which they can be claimed bear some sensible and appropriate proportion to each other. This was accepted by the Court of Appeal as the appropriate approach in the area in which we are mainly concerned in Thompson (supra) and the Court of Appeal has reiterated the principle in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 [2003] ICR 318 in relation to compensation awards for injury to feelings in discrimination claims in the employment field. In each case, the court considered that reference to awards for personal injuries, which is the area within which the most sophisticated corpus of material to make such comparisons exists, was the appropriate means of achieving this necessary level of consistency and proportionality.

I return then to the awards in the present cases in the light of those authorities. There would appear to be no dispute but that the awards for loss of liberty bear an appropriate proportion one to the other. That would seem implicit in the level of awards suggested on behalf of each of the claimants. It is also accepted both expressly, and implicitly in the figures which they have put forward, that it is not appropriate to extrapolate daily, monthly or yearly rates from the authorities directly in order to arrive at an appropriate figure. I have set out in full the relevant parts of the awards which identified the matters which the defendant took into account. Subject to the basic complaint that he failed to have proper regard to the authorities, it is not suggested that he failed to take into account any material fact which is relevant to the assessment of the awards. So the question ultimately is whether or not it could properly be said that he either went wrong in law, or came to a conclusion which was one to which no reasonable assessor could have come.

As far as the argument that he went wrong in law is concerned, I cannot see that this is sustainable. Whilst he did not deal with the authorities in detail, and in particular in the way that they were presented by the claimants both to him and to us, I can see no justification for concluding that he failed to take into account the awards that were in fact either made or upheld in those authorities, or the approach to the assessment of the appropriate awards. What perhaps requires examination is the way in which he used the Guidelines on General Damages given by the Judicial Studies Board. It is the only yardstick expressly identified; the complaint therefore is that it was the only yardstick that was used.

That seems to me to ignore the fact that these are not the first awards for compensation which the defendant has made. Although awards are made confidentially, we know at least what was awarded to the claimants in O’Brien (supra). The first claimant in that case had been awarded £115,000 in respect of what was described as “basic” damages and £172,000 in respect of “aggravated matters”. Although the court quashed the awards on the basis that the defendant had failed to identify properly the make up of the non-pecuniary award there was no criticism by the courts of the award of £115,000, which must have been for loss of liberty simpliciter, as one would have expected there to have been if it was considered irrationally low. That award was for a period of 11 years and 42 days in custody. It accordingly equated with the period that the claimant Hall spent in custody. It follows, it seems to me, that the defendant was applying a consistent approach in the present claims to the assessment of that element of the award. His reference to the Guidelines was in my judgment not only wholly apposite, but also a fundamental part of the exercise which he had to undertake. His conclusion as to the appropriateness of the award in the light of those Guidelines cannot possibly be described as wrong in law. Whatever we may think about the levels of awards for personal injuries, his comparisons in both cases seem to me to be entirely appropriate.

I can see nothing, in those circumstances, to suggest that the defendant failed to apply the principles in analogous common law claims. And the claimants were unable to point to any such principle, save by way of comparing the level of awards for significantly shorter periods of false imprisonment. In other words, the real complaint is that the awards were irrationally low. This seems to me to be an impossible argument to sustain in the light of the claimant’s acceptance of the approach in Thompson (supra) which expressly recognised the tapering effect necessary in order to achieve a proportionate final figure. Bearing in mind the effect of upper limits on awards of damages and personal injuries, I cannot see any justification for concluding that the defendant’s awards were irrational.

As far as the assessment of £10,000 for the sense of injustice felt by the claimant Hall is concerned, there is some superficial merit in the argument that it is out of line with what was suggested in Thompson (supra) for malicious prosecution. But in my judgment, this award must be considered in the light of the overall figure of £50,000 of which it formed part for identifiable heads of compensation and in the light of the award of £20,000 to represent aggravated damages. I can see nothing wrong, bearing in mind the appropriateness, in my view, of the sum of £125,000 for loss of liberty, with an overall sum of £70,000 for the separate identifiable factors. There is a clear danger of overlap between the various heads within these assessments. This is the danger of requiring heads of compensation to be broken down in such an intangible area as the assessment of awards in these types of case. In my judgment this court should not interfere with this award.

These claims are therefore dismissed.

I agree.