O'Brien and others (FC) (Appellants) v. Independent Assessor (Respondent)
40. Lord Brennan later published an Addendum to his two Assessments. One section of this dealt with "Reduction for previous offending". It is plain from the Addendum that Lord Brennan regarded the "aggravating factors" to which he had referred as falling within the section 4(A)(b) matters to which the assessor was directed to pay particular regard. As to the application of the deduction to the whole of the award for non-pecuniary loss, Lord Brennan explained his thinking in para 20 of the Addendum.
Lord Brennan's agreement that the part of an award relating to a physical or mental injury should not be reduced on account of any past criminality led, since he had subjected both the £50,000 he awarded to Mr Vincent Hickey and the £75,000 he awarded to Mr Michael Hickey for psychiatric injury to the past criminality deduction, to an amendment of his original assessment. The deduction was not applied to the £50,000 or to the £75,000.
41. In their respective judicial review applications both appellants referred to the application of the past criminality deduction to "the entire sum referable to non-pecuniary loss" as a misdirection (see para 55 of Mr Vincent Hickey's Grounds and para 57 of Mr Michael Hickey's and both sought, inter alia, an order quashing the decision "to make the deduction for previous offending from the sum total for non-pecuniary loss" (see para 72(a)(iii) of Mr Vincent Hickey's application and para 74(a)(iii) of Mr Michael Hickey's).
42. The Summary Grounds of Defence filed on behalf of Lord Brennan (and on behalf of the Home Secretary) adverted to this issue and contended that
43. Maurice Kay J, as he then was, dealt with this issue in para 42 of his judgment. He said he had " no doubt that sub-section (4A) permits deduction from the whole of the non-pecuniary award".
44. The Hickeys (and Mr O'Brien) appealed to the Court of Appeal. One of the specified grounds of appeal was that Maurice Kay J was in error in permitting a deduction from the non-pecuniary damages attributable to "the misconduct by the authorities, the fact of loss and liberty and aggravated damages" (see paras 4, 5 and 6 of their respective Section 7 Grounds of Appeal).
45. Auld LJ dealt with the issue in paras 105 to 113 of his judgment. He concluded in para 112 of his judgment that:
and, in para 113, said this:
Longmore LJ and Gage J both agreed with what Auld LJ had said on this point and added nothing of their own.
46. My Lords the history in this litigation of the issue whether section 133 (4A)(c) justifies a past criminality deduction from the whole of a non-pecuniary award (save such part as relates to physical or mental injury - see para 20 of Lord Brennan's Addendum and para 112 of Auld LJ's judgment) demonstrates, I respectfully suggest, that the issue has been alive in these proceedings since their inception and, since the leave to the appellants to appeal to this House was in no way limited, can be addressed by your Lordships, whether or not it has been specifically addressed by counsel.
47. In my opinion the reasoning of Auld LJ in para 113 of his judgment, and of Maurice Kay J in para 42 of his, fail to justify the application of a past criminality deduction to compensation awarded to reflect any improprieties in the conduct of the investigation and prosecution of the offence (i.e. the subsection (4A)(b) matters). In para 113 Auld LJ noted that a hardened criminal might not suffer so greatly as a person of previous good character from many of the incidents of wrongful conviction and loss of liberty. That may well be true, but what has it to do with improprieties committed by the police or by prosecuting authorities when investigating and prosecuting an offence? If a sum is to be awarded by way of compensation for the commission of those improprieties, why is it to be supposed that a hardened criminal is not as much aggrieved by them as a person with no criminal record? I suppose that a hardened criminal might accept prosecution and imprisonment as a risk inherent in his lifestyle. But would he accept, as part of that risk, the risk of his conviction for an offence he had not committed being procured by a false confession extracted from him or others by violence or other improper persuasion, or by deliberate non-disclosure of exonerating evidence held by the police or prosecuting authorities, or by perjured evidence in the giving of which the police were complicit? I hope he would not, for although a hardened criminal may live a life of disrespect for the rule of law, he is as entitled as everyone else to expect justice when he finds himself in a court of law. To pretend or to assume that a hardened criminal's feelings and sense of outrage, when the victim of a miscarriage of justice for which the conduct of the authorities in the investigation and prosecution of the offence may be in part responsible, are different in kind from those of a person with no criminal record who finds himself in a similar position is to my mind unacceptable. In my opinion, there is no justification whatever for applying the past criminality deduction to the part of a non-pecuniary loss award that reflects the subsection (4A)(b) matters. Nor can I see any logic at all in applying a past criminality deduction to the incidents of loss of liberty experienced by a person who has never before been in prison. Why should a record of petty offending that has not led to a sentence of imprisonment justify any deduction at all? The misery of imprisonment as a result of a miscarriage of justice might be less for a person who had had previous experience of justified imprisonment, but why should it be less for a person who had not?
48. Indeed the whole concept of an indiscriminate deduction on account of past criminality seems to me to be wrong in principle and not justified by section 133(4A). The subsection requires the assessor to assess the compensation attributable to "suffering, harm to reputation or similar damage" and directs the assessor, in doing so, to have regard in particular to the para (a), (b) and (c) matters. It says nothing about a deduction across the board on account of past criminality. Past convictions may be very relevant to the sum to be awarded for loss of reputation. Past imprisonment may be relevant to the degree of suffering occasioned by being in prison. The sum to be awarded in respect of individual types of suffering or harm that go to make up the total sum to be awarded for non-pecuniary loss may be less because, by reason of past convictions or past imprisonment, the suffering or harm can be adjudged to be less.
49. However, in my opinion an approach that treats paragraph (c) as justifying an indiscriminate deduction across the board not only fails to reflect what subsection (4A), properly construed, directs but runs the risk of past criminality being taken into account twice; first when assessing the value to be placed on the suffering or harm and, secondly, in the making of the deduction. Thus, an inveterate fraudster who has a record of convictions for fraud may have a fairly minimal loss of reputation when he comes to be wrongly convicted for fraud. Why should the value of his minimal loss of reputation be further reduced on account of his previous convictions for fraud. These convictions should be taken into account once and for all when assessing the harm caused to his reputation by the wrongful conviction. Further, if a person has been convicted of an offence and punished for it, why should he be punished again when, as a victim of a miscarriage of justice, he becomes entitled to section 133 compensation? If his earlier malfeasance is relevant to the compensation to be given him for the degree of damage caused by the wrongful conviction to his reputation, or if the period of his past imprisonment can be taken to have reduced the degree of his suffering when finding himself, having been wrongly convicted, again in prison, so be it. But to reduce the amount of compensation simply because the claimant has previously been convicted and punished is not required by subsection (4A), is not supported by any logic, and is inflicting a further punishment for an offence already dealt with by the criminal justice system. I do not accept that this could possibly have been Parliament's intention.
50. For the reasons I have tried to explain I regard the practice of applying an indiscriminate deduction to non-pecuniary damages as wrong in principle. However, the appellants' counsel, Mr Engelmann, has concentrated his attack on the lack of consistency between the 25% and 20% deductions made in respect of the appellants and the 10% deduction made by Sir David Calcutt in respect of Mr Robinson. My noble and learned friend Lord Bingham has rejected this attack. He has done so first by analogy with the situation which arises where an appeal against sentence is based on more lenient sentencing of some other person or persons who have been convicted of a similar offence committed in similar circumstances. Lord Bingham has pointed out that disparity in sentencing is not usually, without more, a basis for a successful appeal. Second, my noble and learned friend has posed the Wednesbury test (Associated Provincial Picture Houses Ltd v. Wednesbury Corpn  1 KB 223); were the percentage deductions within the bracket of judgmental discretion available to the assessor? He has concluded that they were and a majority of your Lordships are in agreement with him on both points.
51. My Lords I do not find this issue at all easy but I do not believe, first, that the analogy with disparity in sentencing is an apt one or, secondly, that sufficient weight was attributed by Lord Brennan to the degree of disparity when his 25% and 20% deductions are compared with the 10% Robinson deduction. As to the disparity in sentencing analogy, the role of a judge in sentencing is to take account of the nature of the offence, the nature of the accused's criminal conduct and what the public interest requires, as well, no doubt, of other relevant considerations. In sentencing the judge owes a duty to the public, who deserve to be protected from criminal conduct, to deal with the accused in accordance with law and having regard to the circumstances of the case. If a previous sentence was too lenient, the judge's duty to the public may preclude him from allowing that leniency to deflect him from imposing the proper sentence for comparable criminal conduct in the case before him.
52. These considerations have, in my opinion, no counterpart in section 133 compensation assessments. These are cases where the claimants for compensation are not wrongdoers from whose activities the public deserve protection or who must be taught that crime does not pay. They are victims of miscarriages of justice. They have been subjected to sentences of imprisonment after convictions procured by miscarriages of justice. The public, on whose behalf judges impose sentences on those convicted in cases tried before them, owe a debt to those who, victims of miscarriages of justice, have been wrongly convicted, sentenced and imprisoned. Section 133 recognises that debt and provides a legally enforceable scheme for compensation to be assessed and paid. The compensation may be regarded as recognising and intended to settle that debt. If the assessment of the compensation gives rise to an understandable, and, in that sense, legitimate feeling of unfairness, it is difficult to see how the payment of the compensation so assessed can be regarded as ameliorating the claimant's sense of grievance arising from the miscarriage of justice. In these circumstances one of the purposes of section 133 will not be met. In disparity of sentencing cases the public interest may require that correct sentences be pronounced. In section 133 compensation cases, by contrast, the public interest, in my opinion, requires at least that the assessment of the compensation should appear to be fair. Where there is the disparity that here exists between the 10% deduction made in respect of Mr Robinson's compensation for non-pecuniary loss and the 20% and 25% deductions made in respect of the Hickeys' compensation for non-pecuniary loss, and bearing in mind the accepted greater seriousness of Mr Robinson's previous criminality when compared with that of either of the Hickeys, the assessment of the compensation awarded to them does not appear to be fair.
53. In my respectful opinion Lord Brennan ought to have attributed much more weight to the 10% deduction fixed by Sir David Calcutt for Mr Robinson than he evidently did. The analogy with disparity of sentencing cases is, in my opinion, an unsound one.
54. For all these reasons I would remit the compensation payable to the appellants for non-pecuniary loss back to Lord Brennan for reconsideration. I would allow the appeals on the deduction for past criminality issue.
LORD RODGER OF EARLSFERRY
55. I agree with my noble and learned friends, Lord Bingham of Cornhill and Lord Brown of Eaton-under-Heywood, that, for the reasons which they give, the appeals relating to the second question should be dismissed. I have, however, formed the view that there is merit in the appellants' first ground of appeal.
56. When the Home Secretary accepts that compensation should be paid for a wrongful charge, conviction or imprisonment, the applicant receives a "Note for Successful Applicants". Para 5 tells him that:
57. Where a defendant has to pay damages for personal injuries suffered by a claimant, the basic way that a judge assesses his pecuniary loss is by comparing the claimant's actual position with his hypothetical position if the wrong in question had not happened. By analogy, the assessor has to compare the applicant's actual position with his hypothetical position if he had not been wrongly charged, convicted or imprisoned - whether or not that was due to anyone's fault.
58. In many cases of damages for personal injuries the claimant will argue that his financial position has been affected in either or both of two ways. First, he will say that, as a result of being injured, he has suffered and will continue to suffer loss by reason of incurring additional non-profitable expenditure, eg, on making his home more accessible or on care in a private nursing home. Secondly, he will say that, because of his injuries, he has been prevented from earning money which he would otherwise have made, usually by working for a wage or salary.
59. If a claimant has been so badly injured that he has to receive full-time care or treatment in a private nursing home or similar facility and gives up his house, the defendant may point out that, while in the nursing home, he is being accommodated and fed. If he had not been injured, he would still have had to accommodate and feed himself. Should his claim for damages for the cost of the nursing home be reduced to take account of the fact that this expenditure saves him the cost of providing accommodation and food for himself elsewhere?
60. Going further, if, as a result of his injuries, the claimant is housed and fed in a hospital at public expense, should his claim for damages be reduced on the basis that he has received a positive benefit in the shape of free board and lodging? Similarly, here, on one view it could be argued that, by providing the appellants with free accommodation, food and clothing, Her Majesty's Government actually conferred a benefit on them - albeit one that they did not want and which ought never to have been inflicted upon them. In assessing their compensation should an allowance be made for that benefit? The argument that it should is inherently very unattractive. But a version is found in the assessor's determination of the appellants' "saved living expenses" in his Assessments for both appellants.
61. Before going any further, it is right to recall that, in the words of Lord Bridge of Harwich in Hussain v New Taplow Paper Mills Ltd  1 AC 514, 527, prima facie the only loss which a claimant can recover is his net loss. But, as Lord Reid observed in Parry v Cleaver  AC 1, 13, there is no universal rule and the common law treats the matter as one depending on justice, reasonableness and public policy.
62. In his Assessments the assessor dealt, at para 13, with "saved living expenses" in this way:
Under reference to the concession apparently made by Mr David Kemp QC in Meah v McCreamer  1 All ER 367, 383e-f, the assessor commented that "this leading expert clearly considered that the financial benefit of board in prison was to be regarded as a credit or deduction against other financial loss of earnings." He also noticed that "the experienced judge" (Woolf J) had accepted this approach. Consistently with that line of argument, in one section of his written case counsel for the assessor also contended that the gratuitous provision of these necessities was a collateral benefit that must be deducted from the gross loss in order to ensure that the appellants were not compensated for something which had already been provided to them.
63. Not only is that approach inherently unattractive: it also infringes a major constitutional principle.
64. During the period when the appellants were in prison the relevant "domestic" duties of the authorities were to be found in the Prison Rules 1964 (SI 1964/388) made under the Prisons Act 1952. By rule 20(2), as convicted prisoners, the appellants had to be provided with clothing adequate for warmth and health in accordance with a scale approved by the Secretary of State. By rule 21(2), as convicted prisoners, they were not allowed to have any food other than that ordinarily provided and, by sub-paragraph (4), the food had to be wholesome, nutritious, well prepared and served, reasonably varied and sufficient in quantity. By rule 22(1) they were not allowed to have alcohol. Finally, by rule 24 they had to be provided with a separate bed and with separate bedding adequate for warmth and health.
65. Doubtless, it would be possible to calculate the notional cost to the Exchequer of keeping the appellants in gaol for 13 years 8 months. But, any such figure would include the cost of having secure buildings and the necessary number of staff to maintain discipline, prevent escapes, provide training and look after the prisoners' welfare etc. So it would not be an accurate reflection of any "benefit" which - however unwillingly - the appellants received in the form of clothing, food and accommodation. The market value of those elements to a consumer would clearly be very much less than the cost of providing them in a prison.
66. Nothing in the Prisons Act or in the 1964 Rules would have authorised the Home Secretary to charge the appellants for their clothing or board and lodging. That being so, as a matter of high constitutional policy, the Home Secretary and those acting on his behalf would have had no power to levy a charge on the appellants for those items. In Attorney General v Wilts United Dairies Ltd (1921) 37 TLR 884 the Food Controller had imposed a charge of 2d per gallon as a condition of the grant of a licence to purchase milk. The case proceeded on the basis that the sums were to be paid into the National Exchequer. Referring to the Bill of Rights, Atkin LJ said, at p 886:
He added, at p 887:
The corresponding passages in the judgment of Scrutton LJ are equally familiar. The decision of the Court of Appeal was affirmed by this House ((1922) 38 TLR 781) and has been regarded ever since as embodying a fundamental principle. See, for instance, R v Richmond-upon-Thames London Borough Council, Ex p McCarthy & Stone Developments Ltd  2 AC 48.
67. Although no mention was made of these authorities in argument, Mr Engelman cited a Prison Service Instruction 09/99 which referred to a previous practice of making deductions in respect of board and lodging from the wages of prisoners on enhanced earnings schemes. Four prisoners had brought proceedings for judicial review of the deductions. The Instruction explained that the Home Office had conceded the cases in the light of legal advice that the deductions were unlawful "because prisoners cannot be required to pay for their own imprisonment, and cannot consent to pay for their own imprisonment". The form of the advice (echoing the judgment of Atkin LJ) shows that it was based on the Wilts United Dairies line of authority. The advice was plainly correct. Equally correctly, in his oral submissions on behalf of the assessor Mr Burnett QC accepted that the Home Secretary could not have charged for the clothing, food and accommodation provided to the appellants while in prison. Departing to this extent from the approach in his written case, counsel also accepted the corollary that, in assessing the appellants' loss, the assessor would not have been entitled to make any allowance for the cost of these items as a benefit conferred on the appellants. In my view that is also plainly correct.
68. In para 25(c) of the Addendum to his Assessments, however, the assessor gave a somewhat different justification for his deduction for saved living expenses:
Although at first blush there may seem to be force in this argument, the authorities show that the policy of the law is considerably more subtle.
69. In Shearman v Folland  2 KB 43 the plaintiff had been in the habit of living in hotels at an average cost of 7 guineas a week. As a result of being injured by the negligence of the defendant's servant, she was confined for 55 weeks to a nursing home where the fees amounted to 12 guineas a week. The defendant argued that, on this aspect of the plaintiff's claim, he should only have to pay an amount based on a loss of 5 guineas per week, being the difference between the cost of the nursing home and the cost of the hotels in which she would have stayed but for the accident. Giving the judgment of the Court of Appeal, Asquith LJ rejected that argument on the basis that "The precise style in which she would probably or might well have lived is, in our view, a collateral matter, and the two payments are not in pari materia":  2 KB 43, 50. He illustrated the hazards of any other approach by various examples, including this one, at p 47:
Asquith LJ went on to hold, however, that if the plaintiff in that case had led evidence to show what proportion of the twelve guineas a week was attributable to board or lodging in the nursing home, it would have been open to the judge to make a deduction in respect of that. In the absence of such evidence the court was not prepared to make its own assessment. On the other hand, Asquith LJ considered that, even in the absence of evidence, a jury would have been entitled to estimate the element in the fees referable to food at £1 per week. So the court made a deduction of £55 from the sum awarded for the fees which the plaintiff had incurred for her stay in the nursing home.