O'Brien and others (FC) (Appellants) v. Independent Assessor (Respondent)

Compensation for a miscarriage of justice must reflect the claimant’s real loss. When calculating lost earnings, an assessor may deduct the cost of the bare necessities which the claimant would necessarily have incurred while living at liberty. The deduction avoids over-compensation and does not treat wrongful imprisonment as a benefit or charge the claimant for imprisonment.

Although administrative decision-makers should ordinarily act consistently, an assessor need not reproduce an earlier assessment which the assessor considers erroneous. A lawful assessment of fair compensation is not invalid merely because a claimant with a worse criminal record previously received a smaller percentage deduction.

Following the quashing of their convictions for murder and aggravated burglary, Vincent and Michael Hickey became entitled to compensation under section 133 of the Criminal Justice Act 1988. The Independent Assessor deducted 25% from their notional lost earnings for living expenses which they would have incurred at liberty. He also reduced most of their non-pecuniary awards by 25% and 20% respectively to reflect other convictions and punishments.

The Administrative Court quashed the living-expenses decision but rejected the challenge to the criminality deductions: [2003] EWHC 855 (Admin). The Court of Appeal restored the assessor’s decision on the first issue and upheld it on the second: [2004] EWCA Civ 1035.

The issues were whether saved basic living expenses could be deducted from lost earnings and whether the larger criminality deductions were unlawful because an earlier assessor had deducted only 10% in the case of a co-defendant with a worse record.

1. Appeal dismissed by a majority on both issues. Lord Bingham delivered the leading speech. Lord Scott, Lord Carswell and Lord Brown agreed that the living-expenses challenge should fail; Lord Rodger dissented on that issue. Lord Rodger, Lord Carswell and Lord Brown agreed that the inconsistency challenge should fail; Lord Scott dissented on that issue.

2. Per Lord Bingham, compensation under section 133 of the Criminal Justice Act 1988 is fair recompense for injury suffered at the hands of the state. It does not depend upon proof of an actionable civil wrong. The assessor may use principles analogous to the assessment of civil damages, while accounting for the distinctive features of wrongful conviction and avoiding undue legalism.

3. Per Lord Bingham, the lost-earnings calculation must identify what the claimant really lost. The hypothesis that the claimant remained at liberty necessarily entails expenditure on the minimum necessities of life. Awarding all notional net earnings without that deduction would leave the claimant financially better off than if the earnings had actually been received. The deduction therefore measures actual loss; it neither characterises imprisonment as a benefit nor charges the claimant for being imprisoned. Lord Scott, Lord Carswell and Lord Brown agreed. Lord Rodger dissented because the supposed saving arose during, and was inseparable from, the continuing wrong of unjustified imprisonment.

4. Per Lord Bingham, broad consistency among administrative and judicial decision-makers is desirable, but it does not require an assessor to follow an earlier decision which the assessor considers erroneous. The current assessor had explained that the 20% and 25% deductions were the permissible minimum in his judgment. Those deductions were not challenged as excessive in themselves and fell within his lawful judgment. The disparity with the earlier 10% deduction did not make them irrational or inadequately reasoned. Lord Rodger, Lord Carswell and Lord Brown agreed.

5. Lord Bingham expressed reservations, not affecting the result, about applying a percentage deduction for past criminality across the whole non-pecuniary award. Relevant convictions and punishments could instead be reflected when assessing particular heads of loss. Lord Scott regarded an indiscriminate deduction as contrary to section 133(4A), liable to double-count criminality and unjustified in relation to official misconduct. Lord Carswell shared substantial reservations. Lord Brown considered a single overall assessment preferable, but observed that this wider methodological issue was not before the House.

1. House of Lords: By [2007] UKHL 10, dismissed the appeal by a majority on both issues and affirmed the Court of Appeal’s conclusion.
2. Court of Appeal: By [2004] EWCA Civ 1035, upheld the assessor’s living-expenses deduction and rejected the challenge to the deductions for other convictions.
3. Administrative Court: By [2003] EWHC 855 (Admin), quashed the assessor’s decision concerning saved living expenses but rejected the challenge based on inconsistency in the criminality deductions.