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

Compensation for miscarriage of justice should be assessed by analogy with clear and applicable principles governing civil damages, particularly false imprisonment and malicious prosecution. Personal injury awards may provide an important cross-check for proportionality and reasonableness, but short-period imprisonment awards must not be extrapolated arithmetically over many years. The assessment is fact-sensitive and may properly be expressed as a global figure because the relevant heads of loss substantially overlap. Judicial review permits intervention only for legal error or irrationality; the court should not substitute its own assessment merely because it would have awarded more.

The claimants had been convicted of serious offences and their convictions were later quashed. Hall sought compensation under section 133 of the Criminal Justice Act 1988; Miller claimed under the Secretary of State’s discretionary compensation scheme. The Independent Assessor awarded Hall £125,000 for loss of liberty, together with further sums for other non-pecuniary loss, and awarded Miller £55,000 for loss of liberty.

Both claimants sought judicial review, contending that the awards were unlawfully and irrationally low because they were not proportionate to awards in false imprisonment and malicious prosecution cases. Hall also challenged a separate £10,000 award for injury to feelings and distress.

1. The claims were dismissed. The court’s task was to determine whether the Assessor had erred in law or reached a conclusion which no reasonable assessor could have reached. It was not to substitute its own valuation.
2. The guidance in O’Brien and Others v Independent Assessor required appropriate consideration of analogous common-law damages principles, adequate explanation of the award and, where practicable, identification of significant separate factors. It did not require the Assessor to adopt a fixed tariff or a mathematically precise breakdown.
3. Thompson v Commissioner of Police of the Metropolis and R v Governor of Brockhill Prison, ex parte Evans (No 2) supported a global and tapering approach. Awards for short periods of imprisonment could not be converted into daily, monthly or yearly rates and extrapolated over many years. The initial impact of imprisonment could attract greater weight, while the rate of compensation could reduce as imprisonment continued.
4. Loss of liberty, the ordinary consequences of imprisonment, injury to feelings, damage to reputation and prosecution-related distress commonly overlap. A detailed division into separate heads was therefore not required where it would create artificiality or double-counting. Aggravated damages remained compensatory rather than punitive.
5. The Assessor was entitled to use personal injury guidelines as a cross-check on proportionality and reasonableness. The awards were consistent with the approach previously taken in O’Brien and Others v Independent Assessor, and there was no basis for finding them irrational. Hall’s separate £10,000 award had to be assessed in the context of the overall compensation, including the £20,000 aggravated-damages element, and was not unlawful.

The judgment was a first-instance judicial review of compensation determinations made by the Independent Assessor. No lower court decision is stated.