Independent Assessor v O'Brien & Ors

An independent assessor determining statutory compensation for a miscarriage of justice must apply common-law damages principles where they are clear and genuinely analogous. The assessor may adapt such principles where the statutory scheme or facts require it, but must explain the departure and give sufficient reasons for the award's make-up.

A rigid item-by-item calculation is not required. Significant and reasonably self-contained aggravating features should, where practicable, be separately identified, while guarding against overlap and double counting. Loss-of-earnings compensation may be reduced for ordinary living expenses saved during wrongful imprisonment. Under Criminal Justice Act 1988, section 133(4A), criminality deductions may extend to all non-pecuniary loss other than personal injury. A lawful, explained later assessment need not repeat an earlier assessor's error merely for consistency.

The respondents had received compensation under section 133 of the Criminal Justice Act 1988 after convictions for serious offences were quashed. The Independent Assessor awarded compensation for pecuniary and non-pecuniary loss. He made deductions for saved living expenses and, in the Hickeys' cases, for criminality.

Maurice Kay J partly quashed the awards. He held that the assessor had to provide a fuller breakdown of non-pecuniary loss, address aggravated features, and refrain from deducting saved living expenses. He rejected the Hickeys' challenges to criminality deductions and alleged inconsistency with the award made to their co-accused.

The Independent Assessor appealed on the matters quashed. Michael and Vincent Hickey cross-appealed on the criminality and consistency issues. The central questions concerned the meaning of the requirement to apply principles analogous to civil damages, the required reasons for non-pecuniary awards, and the proper deductions from compensation.

1. Appeal allowed in part; cross-appeals dismissed. Auld LJ, with whom Longmore LJ and Gage J agreed, dismissed the Independent Assessor's appeal on the required breakdown of non-pecuniary compensation and aggravating features. The court allowed his appeal on saved living expenses. It dismissed both Hickeys' cross-appeals.

2. Paragraph 5 of the Home Office Note required the assessor to apply common-law damages principles whenever they were clear and sufficiently analogous to the statutory claim. The analogy was not confined to abstract compensatory principles. Equally, it was not a requirement to transplant every technical rule of a particular tort. Where the analogy was imperfect, the assessor could modify or decline to use the rule, but had to explain why.

3. The assessor had to give an adequately reasoned account of non-pecuniary compensation. A detailed tariff or rigid division between loss of liberty and its consequences was neither possible nor required. However, where practicable, the assessor should identify the main elements of the award, including significant and self-contained aggravating features. This aided fairness, consistency, judicial review and avoidance of double recovery in later civil proceedings. The awards to O'Brien and Vincent Hickey therefore required fuller explanation.

4. Compensation for lost earnings should reflect earnings actually lost. A broad 25% deduction for ordinary living expenses saved during imprisonment was permissible and, absent contrary evidence, modest. It was not a deduction for the involuntary prison conditions or a supposed benefit of imprisonment. Longmore LJ added that the analysis concerned saved expenditure from earnings that would otherwise have been received, not state benefits or gratuitous care.

5. Section 133(4A) of the Criminal Justice Act 1988 permitted deductions for other convictions from the whole non-pecuniary award, except personal injury. “Suffering, harm to reputation or similar damage” was a compendious expression covering loss of liberty, its consequences, investigative or prosecutorial conduct, and aggravating features.

6. Consistency between comparable administrative assessments was desirable but did not require a later assessor to reproduce an earlier, more generous assessment that he permissibly regarded as wrong. A lawful later decision, objectively justified and explained, gave the Hickeys no justified sense of grievance.

• Court of Appeal (Civil Division): Allowed the Independent Assessor's appeal only as to saved living expenses; otherwise dismissed it. Dismissed Michael and Vincent Hickey's cross-appeals: [2004] EWCA Civ 1035.
• Administrative Court: Maurice Kay J partly quashed the compensation assessments and remitted them for reconsideration, but rejected the Hickeys' challenges to criminality deductions and inconsistency. No reported citation was stated in the judgment.