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R (Miller) v Independent Assessor (2009) EWCA Civ 609

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The Independent Assessor must have erred in law by failing to make proper use of the civil law awards, because without much explanation he arrived at an award which is irrationally low (namely £55,000 for over 4 years' detention following wrongful conviction for murder).

Contents

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

Headnote

CRIME — Miscarriage of justice — Ex gratia compensation scheme — Claimant wrongly convicted of brutal murder and serving over 4 years’ imprisonment — Assessment of compensation by independent assessor — Whether independent assessor properly considering and applying guidance and previous decisions in similar cases — Whether award reflecting gravity of charge and length of imprisonment.

Summary

In assessing the compensation payable to a victim of miscarriage of justice who in consequence had served a term of imprisonment, the independent assessor should apply principles of other civil awards in respect of similar wrongs in order to achieve legal consistency with earlier decisions, having regard to the gravity of the offence of which the victim had been wrongly convicted and the period of his incarceration.

The Court of Appeal so stated in allowing an appeal by the first claimant, Stephen Miller, from the judgment of the Divisional Court of the Queen’s Bench Division [2008] EWHC 2758 (Admin) (Latham LJ and Swift J) to dismiss a claim by the first claimant and the second claimant, Darren Hall, for judicial review of the separate assessments made in respect of each of them by the independent assessor, Lord Brennan QC, who had awarded £55,000 for the claimant’s loss of liberty.

In November 1990 the claimant had been convicted of a brutal murder by the Crown Court at Swanse aand been sentenced to life imprisonment. The Court of Appeal (Criminal Division) on 16 December 1992 had quashed his conviction, making severe criticisms of the conduct of the police, and the claimant had thereafter been released from prison after being in custody for four years and one month from the date of his arrest. On his application to the Secretary of State for the Home Department for compensation under the ex gratia scheme the Independent Assessor in November 2007 had awarded £55,000 for his loss of liberty and the consequence of his imprisonment in addition to awards made under other heads which were not relevant to the appeal.

SIR PAUL KENNEDY said that the assessor should have taken a careful look at the guidelines in Thompson v Commissioner of Police of the Metropolis [1998] QB 498 and at the civil law awards, and decided how best to apply them. The independent assessor must have been fully alive to those decisions, but he seemed to have decided that they could not assist him. Although, in the light of the authorities, there was no room for an arithmetical calculation, if the claimant’s period of incarceration had been about 60 days it was difficult to see how the assessor could properly have done other than begin by considering what in R v Governor of Brockhill Prison Ex parte Evans (No.2) [1999] QB 1043 and R v Secretary of State for the Home Department Ex p Bouazza (unreported) 9 December 1997 had been awarded for loss of liberty simpliciter. The assessor had not had the benefit of the judgment in R (B) v Secretary of State for the Home Department [2008] EWHC 3189 (Admin) but the judgment in that case helpfully spelts out how the deputy judge had arrived at his conclusion, and if he had been right when he had awarded £32,000 to compensate for an unlawful six month extension of a period of detention which had been lawfully begun, his Lordship did not see how £55,000 could possibly be sufficient for a period of incarceration of over four years which had been unlawful from start to finish. The assessor must have erred in law by failing to make proper use of the civil law awards, because without much explanation he had arrived at an award which was irrationally low, and the Divisional Court had erred in failing to recognise that fact. The case should therefore be remitted to the assessor to reassess his award for “loss of liberty and the consequences of imprisonment which usually arise in any sentence of imprisonment” in the light of the judgment of this court.

LLOYD and MUMMERY LJJ agreed.

Other

[2009] EWCA Civ 609; [2009] WLR (D) 206

CA : Mummery, Lloyd LJJ, Sir Paul Kennedy: 19 June 2009

Appearances: Heather Williams QC (Mathew Gold & Co) for the claimant; Robin Tam QC (Treasury Solicitor) for the assessor. Darren Hall did not appeal and was not represented.

Reported by: Ken Mydeen, barrister

External links

Bailii

ICLR website - summary

ICLR website - Supreme Court permission to appeal refused, 5/11/09