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

An assessor under section 133 of the Criminal Justice Act 1988 must apply clear and relevant common law principles analogous to those governing civil damages, subject to the statute and applicable guidance. That includes the principle that non-pecuniary compensation should be broken down sufficiently to promote transparency and avoid double recovery. Aggravating features must be reflected where a basic award would not provide fair compensation. The assessor may depart from the ordinary interest method where its application would produce unfairness in a long-tail claim. A misdirection as to the common law basis for deducting saved living expenses invalidates the assessment.

The claimants had convictions for murder and other offences quashed by the Court of Appeal Criminal Division. The Secretary of State accepted that each had a right to compensation under section 133 of the Criminal Justice Act 1988 and referred assessment of the amounts to Lord Brennan, the independent assessor.

They sought judicial review of various aspects of the assessments, including the failure to itemise non-pecuniary loss, the treatment of aggravating features, deductions for saved living expenses and previous convictions, refusal of financial-advice and family-counselling costs, and the method of calculating interest.

1. General approach. Paragraph 5 of the Compensation for Miscarriages of Justice Note required the assessor to apply clear and relevant common law principles analogous to civil damages principles. It did not require the direct transplantation of every tort rule, and the statute and specific guidance prevailed where inconsistent.
2. Breakdown and aggravating features. The principle in Thompson v Commissioner of Police for the Metropolis [1998] QB 498, requiring sufficient itemisation of categories of non-pecuniary loss, was analogous and binding on the assessor’s approach. It promoted transparency, facilitated challenge and assisted any later civil proceedings. The refusal to provide an adequate breakdown was legally erroneous. The loss-of-liberty award had to reflect duration proportionately without mechanical arithmetic extrapolation. Aggravating features had to be addressed where a basic award would not provide fair compensation.
3. Other challenges. The rejection of a libel-based valuation was permissible because reputation was less central in miscarriage-of-justice compensation than in libel. The deductions for previous convictions were within the assessor’s powers and were not rendered unlawful by the more favourable deduction made for a co-accused by another assessor. Financial-advice costs were not recoverable absent an established analogous damages principle. Counselling costs incurred by a claimant’s mother were not recoverable because section 133 compensated the person who had suffered punishment, although expenses incurred on the claimant’s behalf could be allowed.
4. Saved living expenses. The assessor misdirected himself by treating the deduction as supported by Hodgson v Trapp [1989] AC 807. The contrary principle in Dews v National Coal Board [1988] AC 1 required the decisions on saved living expenses to be quashed.
5. Interest. The assessor was entitled to depart from the approach in Jefford v Gee [1970] 2 QB 130 where its arithmetic would produce unfairness in substantial long-tail claims. The challenges succeeded in part, with relief and costs to be determined subsequently.

The convictions were quashed by the Court of Appeal Criminal Division before the claimants applied for compensation. The present proceedings were first-instance judicial review claims against the assessments made under section 133 of the Criminal Justice Act 1988.