Hickey & Ors v Independent Assessor

Permission to appeal should be granted where a proposed ground raises a reasonably arguable issue of sufficient importance to justify substantive consideration. The court may enlarge permission where a permitted argument is likely to overlap with excluded issues and related matters can be heard coherently. The judgment records arguable issues concerning deductions for other convictions, consistency in compensation awards, the categorisation of non-pecuniary loss, and aggravated compensation. It determines permission only and does not decide the underlying statutory or compensation issues.

Following the quashing of their criminal convictions, Michael Hickey, Vincent Hickey and Michael O’Brien applied for compensation under section 133 of the Criminal Justice Act 1988. The Independent Assessor made awards, including deductions and differing awards for non-pecuniary loss and aggravated compensation. Maurice Kay J heard judicial review challenges to the Assessor’s decisions. The Hickeys renewed applications for permission to appeal on issues concerning section 133(4A), consistency and equality of treatment, and non-pecuniary loss. The Independent Assessor sought permission on additional grounds concerning the categorisation and breakdown of awards and aggravated compensation. The central question was whether these grounds were sufficiently arguable to justify permission and enlargement of the permitted appeal.

1. Permission granted. The Hickeys’ proposed appeals raised sufficiently arguable issues concerning the construction of section 133(4A) of the Criminal Justice Act 1988, the consistency of the awards, and the assessment of non-pecuniary loss. The court expressed no concluded view on the merits and gave no assurance that the appeals would succeed.
2. It was reasonably arguable that the words referring to suffering, harm to reputation and similar damage did not necessarily permit deductions for loss attributed to official misconduct, loss of liberty, the circumstances in which injury was sustained, or aggravated damages merely because an applicant had unrelated convictions.
3. The alleged substantial and unexplained differences between the awards made to the Hickeys and to Mr Robinson raised an arguable question concerning certainty and equality of treatment. A decision-maker was not required to adopt an earlier award if that would produce an outcome considered wrong, but the alleged disparity justified permission.
4. The Independent Assessor’s permission was enlarged. The court considered that an argument concerning the required breakdown of awards, including the issue discussed in Thompson v Metropolitan Police Commissioner [1998] QB 498, was likely to stray into broader arguments on impracticality and inflation. Enlargement was therefore appropriate so that the related issues could be heard coherently.
5. A further challenge to treating compensation for aggravating features as aggravated damages, including whether an aggravated award had to be separately identified and supported by reasons, was sufficiently arguable. The matter was ordered to be heard before three Lords Justices, with directions concerning respondent’s notices, skeleton arguments, amended grounds and extensions of time.

• Court of Appeal (Civil Division): The applications were allowed. The court granted the Hickeys permission on three issues and enlarged the Independent Assessor’s permission on two grounds.
• Administrative Court: Maurice Kay J’s judgment, handed down on 16 April 2003, was challenged following compensation decisions under section 133 of the Criminal Justice Act 1988. The Court of Appeal granted permission to appeal from that decision.