The HOuse of Lords today decided a compensation claim involving those wrongfully convicted of the murder of Carl Bridgewater. THe case involves a split decision in the House of Lords. The detailed analysis of the court has been summarised in misleading style by the media, and much criticism has been made on a basis that the law Lords are careful to exclude from their reasoning. However, journalists never let the facts get in the way of a good news report and controversy.
The argument for the Hickeys was that “It is unfair, unjust, unreasonable and contrary to public policy to reduce earnings lost as a result of wrongful imprisonment to reflect the free board, clothing and accommodation afforded to the prisoner. That is not a benefit, it is the very detriment on which the victim’s claim to compensation depends. He should not be in effect charged for being wrongfully imprisoned, a procedure revolting to ordinary notions of fairness.” (para 13) The assessor’s position was that while compensation could take account of loss of earnings, outside prison “he would have had to provide the necessities of life, which must be deducted to establish what he has actually lost. This is not to charge him for being in prison, nor is it to treat his wrongful imprisonment as a benefit. It is to recognise the reality (which authority enjoins decision-makers to do) that the sums could not have been earned had the earner not paid to procure the basic necessities of life. It is fair, just and reasonable to award the victim what he has notionally lost but no more, a course supported by legal authority and public policy expressed in statute.” (para 14)
Similar justification is given by Lord Scott (at para 35) : “I wish to emphasise, in particular, my agreement that the deduction from a claimant’s notional earnings for the period he has suffered wrongful imprisonment of a sum calculated to represent the cost of the bare necessities of life that he would, if at liberty, have had to incur cannot be justified, and has not been sought to be justified, as representing the value of a so-called benefit to the claimant of having been maintained at public expense during that period. I agree with my noble and learned friend Lord Brown of Eaton-under-Heywood that wrongful imprisonment cannot sensibly be characterised in any way as conferring a benefit (para 92 of his opinion). The justification for the deduction is, to my mind, that compensation is intended, so far as lost earnings are concerned, to provide the claimant with the sum that, had he been at liberty he would have had at his disposal to expend or save as he chose. Expenditure on the bare necessities of life is an essential, not a choice. So the deduction is necessary to achieve the object of the lost earnings element of a compensation award.”; by Lord Carswell (at para 86); and Lord Brown (at paras 92 – 107) (where he gives detailed analysis of the question as involving compensation to reflect what was lost, rather than as an assessment of board and lodgings costs (which is of course the manner in which it has been characterised by some such as Iain Dale, the Beeb, the Times headline and report, and the Guardian report as well as others here, and here).
“82. In respectful disagreement with your Lordships, I find myself unable to accept this, or indeed any other, argument in favour of the deduction. … [In] the appellants’ situation the wrong was not over and done with when they were being maintained at public expense and the supposed savings accrued to them. On the contrary, their enforced but unjustified maintenance in prison at public expense for years on end is the very worst part of the injury which has been done to them and for which they are entitled to compensation. The actual infliction of the continuing wrong and the supposed saving are inextricably linked, just as they would be in the case of a prolonged kidnapping. That simple fact takes the appellants’ case beyond the reach of the kinds of policy considerations which favour offsetting the injured person’s savings against loss of earnings in the situations envisaged by Parliament and the courts. To put it no more strongly, justice, reasonableness and public policy surely dictate that no allowance should be made for so-called savings which the appellants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated.“