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

An Independent Assessor assessing compensation for a miscarriage of justice must apply principles analogous to those governing damages for civil wrongs. This requires careful, reasoned use of guidance and awards in analogous claims, particularly false imprisonment and malicious prosecution. The authorities do not support simple arithmetical extrapolation from short periods of detention. They do require the assessor to use civil awards as a rational aid to proportionality, consistency and transparency. Personal injury awards may provide a cross-check, but cannot substitute for engagement with cognate civil awards. A global award for loss of liberty and the ordinary consequences of imprisonment that is irrationally low is unlawful. The appropriate remedy is remission for reassessment.

The appellant had been convicted of murder and imprisoned for over four years before his conviction was quashed. The Independent Assessor awarded £55,000 for loss of liberty and the consequences ordinarily arising from imprisonment, with separate awards for other matters. The Administrative Court dismissed his judicial review challenge: [2008] EWHC 2758 (Admin). The appeal concerned whether the Assessor had failed to apply analogous civil damages principles, had used personal injury guidance inadequately, and had reached an irrationally low figure. The central issue was how civil awards for false imprisonment and related torts should inform compensation for a prolonged miscarriage of justice.

1. Appeal allowed. The Assessor’s award of £55,000 was irrationally low because he failed to make proper use of relevant civil awards. The case was remitted to the Independent Assessor for reassessment.
2. The statutory framework was relevant by analogy. Criminal Justice Act 1988, section 133 applied only to convictions set aside because a new or newly discovered fact conclusively showed a miscarriage of justice. Although this case was outside that category, statutory and ex gratia claims had been handled in the same way after the statutory scheme came into force.
3. Following the approach explained in Independent Assessor v O’Brien, the Assessor had to identify a rational and articulable basis for the overall figure, use analogous civil awards, and guard against double-counting or under-counting. The most cognate authorities included false imprisonment and malicious prosecution cases. The Court of Appeal’s guidance in Thompson & Hsu was relevant.
4. The court rejected simple arithmetic extrapolation from short periods of imprisonment. That did not permit the Assessor to disregard the civil awards. Where appropriate, awards such as those in Evans and Bouazza supplied a rational starting point. The judgment in B demonstrated the importance of explaining how a proportionate figure had been reached. Tapering as imprisonment continued was permissible, but the continuing suffering of imprisonment had to be recognised.
5. Personal injury guidelines could operate as a cross-check. They could not replace a careful analysis of the cognate civil awards. The Divisional Court had also misunderstood the substance of the O’Brien litigation.

1. Court of Appeal (Civil Division): On 19 June 2009, allowed the appeal and remitted the assessment for reconsideration: [2009] EWCA Civ 609 .
2. Administrative Court (Divisional Court): On 11 November 2008, Latham LJ and Swift J dismissed the judicial review challenge to the £55,000 award: [2008] EWHC 2758 (Admin) .