Practice and Procedure


PUBLISHED April 25, 2003

Case relating to the assessor's approach in assessing compensation under s.133 of the Criminal Justice Act 1988. An assessor was to apply relevant common law principles wherever they were clear and analogous. Analogous meaning 'similar or corresponding in some respect'Applications by the three claimants ('MO','VH' and 'MH') for judicial review of the assessments of Lord Brennan QC made under s.133 Criminal Justice Act 1988 for compensation for miscarriages of justice. In 1997 the Court of Appeal quashed the convictions of MH and VH for murder and aggravated burglary. They had been convicted in 1979 and released on bail in 1997. In 2000 the conviction of MO for robbery and murder was also quashed. MO had been convicted in 1988 and released on bail in 1998. The three men made applications for compensation to the Secretary of State who determined that each had a right to it. In accordance with s.133 of the Act an independent assessor, Lord Brennan QC, was appointed. MH was awarded a total of ?990,000. VH was awarded £506,220.20 and MO was awarded £647,900. The grounds of challenge were: (i) the meaning of 'principles analogous to those governing the assessment of damages for civil wrongs' contained in para 5 of a document entitled 'Compensation for Miscarriages of Justice: Note for Successful Applicants'. The claimants submitted that wherever there was an analogous principle governing the assessment of damages for civil wrongs, the assessor had to apply it; (ii) that the assessor ought to have broken down the award for non-pecuniary loss; (iii) that there ought to have been an itemised uplift by reference to aggravating features for MO and VH; (iv) that the assessor's rejection of MO's submission that the award could be compared to libel awards was unreasoned and irrational; (v) that the saved living expenses of the claimants ought not to have been taken into account; (vi) in relation to MH and VH, that s.133 of the Act did not permit a deduction for criminality or, if it did, there was an unacceptable inconsistency between the 20-25 per cent deductions made as compared to the 10 per cent deduction made by the previous assessor in the case of their co-accused; (vii) in relation to VH and MO, that the claims for compensation ought to have included an amount in respect of the cost of independent financial advice concerning the investment of the large sums of money that the awards placed in the hands of inexperienced investors; (viii) that there ought to have been an award for counselling costs in relation to MH's mother; (ix) in relation to MH and VH, that the correct approach to the calculation of interest was to apply the method used in personal injury cases i.e. one half of the High Court short term investment account rate.HELD: (1) The purpose of para.5 was to enjoin the assessor to apply relevant common law principles wherever they were clear and analogous. In its ordinary meaning, analogous meant 'similar or corresponding in some respect'. (2) The assessor had been under an obligation to break down the award for non-pecuniary loss. Thompson v Commissioner of Police for the Metropolis (1997) 3 WLR 403 established an analogous principle of transparency entitling the claimants to a breakdown of the assessment. (3) In the case of MO £125,000 was awarded for "the consequences of imprisonment". The failure to provide at least some breakdown of this was legally flawed. The figure for loss of liberty should reflect its duration on a proportionate but not arithmetically extrapolated basis. Either there should have been an element in relation to aggravating features or the absence of one ought to be explained. There was an analogous principle derived from Thompson (supra) to the effect that an aggravated element arose when because of aggravating features a basic award alone would not provide fair compensation and it was legally erroneous to have refused to apply that principle. MH did not succeed on this ground. (4) It was not irrational for the assessor to have concluded that libel damages were not analogous. This was because of the less central role played by the reputation element in an assessment under s.133 of the Act. (5) The decisions in all three cases relating to saved living expenses must be quashed. The assessor had misdirected himself as to the common law principle when he applied a discount. Hodgson v Trapp (1988) 3 WLR 1281 and Dews v National Coal Board (1987) (1988) AC 1. (6) The deductions were not irrational or unlawful. The assessor was not bound by any principle of consistency because there was good reason, his own permissible judgment, for departing from the previous assessor's approach. Any sense of grievance was unjustified if it simply rested on the fact that deductions that were permissible in all other respects compared unfavourably with a more generous approach by a different assessor to a co-applicant. (7) It was not legally erroneous to reject the cost of such advice as a subject of compensation. There was no legal principle to the effect that independant financial advice to a claimant who was neither a patient nor a minor was recoverable. (8) MH's mother's counselling costs were not recoverable. The assessor was correct to limit the award by reference to expenditure incurred in acting on behalf of the claimant. (9) The assessor had not acted irrationally. An independent assessor had to be free to depart from the Jefford v Gee (1970) 2 QB 130 principle just as the courts sometimes did in personal injury cases, where the remorseless application of its arithmetic would produce a result that would be unfair to one side or to the other.Judgment accordingly.

[2003] EWHC 855 (Admin)