Legal news – compensation and the Carl Bridgewater case

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 Hickey cousins were wrongfully convicted for the murder and spent 18 years in prison being released in 1997 (16 years after leave to appeal to challenge the convictions was first refused).  The Hickeys were crminals.  They had a number of minor convictions and one had pleaded guilty to charges of armed robbery.  They were awarded compensation by the Home secretary under s 133 of the Criminal Justice ACt 1988.  In compensating those wrongfully convicted SChedule 12 of the 1988 ACt  is applicable as assessment of compensation is to be by a legally qualified assessor.  The legislation does not set out the basis for compensation but the Home Secretary has issued guidance notes.  In assessing compensation the assessor takes account of loss of earnings, and in this case he deducted from that a figure to take into account the cost of living that would have inevitably been incurred (through feeding, clothing and accommodating themselves) if at liberty.  The assessor Lord Brennan QC deducted 25%.  The Hickeys challenged whether such a deduction was competent.  While they were supported at first instance, the Court of Appeal supported the assessor’s deduction.  By a majority of 4 to 1 on the point the Lords have upheld the Court fo Appeal decision.

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)

The decision of the court is shortly stated.,  Lord BIngham argues at para 23  “It is in my opinion inapt and understandably offensive to the appellants to regard or treat their imprisonment as a benefit conferred on them by the state. A Prison Service Instruction (09/1999) on which they relied forbids deductions for board and lodging from the wages of prisoners working on enhanced wages schemes in prison or on pre-release schemes outside prison, accepting that prisoners cannot be required to pay for their own imprisonment and cannot consent to do so. I have no doubt that this is a salutary principle. But recognition of that principle does not in my opinion resolve the issue in this appeal. The assessor’s task, in relation to the appellants’ loss of earnings claim, was to assess what they had really lost. That, and that only, was the loss for which they were to be compensated. The assessment has necessarily to be hypothetical, but must be as realistic as possible. If the appellants were awarded the full sum of their notional lost earnings with no deduction save tax, they would in reality be better off than if they had earned the money as free men since as free men they would have had to spend the minimum necessary to keep themselves alive. The deduction puts the appellants in the position in which they would in reality have been had they earned the money as free men and so compensates them for their actual loss. In my opinion, the assessor and the Court of Appeal reached the correct conclusion, and I would reject this ground of appeal.”

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).  

The compensation figure is to compensate for what has actually been lost, and this is not about charging board and lodgings for time in jail, but is to reflect what has genuinely been lost by the convicted people.  The whole of earnings would not be lost because they would not have had the benefit of the whole of the earnings.  The point may seem a fine one, but the judges are being criticised for something they are careful to exclude from their speeches.  As is often the case with lengthy judicial decisions, which will be studied and analysed for years, an instant and misleading media report leads to criticism which is not wholly warranted. 

 

This is not to say I support the analysis of the majority.  Personally I agree with Lord Rodger.  He disagrees with the general analysis of the majority.  Lord Rodger (A former COnseravtive law officer in Scotland) takes the more liberal view.  His analysis can be summarised by the following passage form his speech:

 “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.

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About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
This entry was posted in carl bridgewater murder case, compensation claims, hickey, law, misleading reporting, Uncategorized. Bookmark the permalink.

2 Responses to Legal news – compensation and the Carl Bridgewater case

  1. Anonymous says:

    As I understand it, the assessor assessed the amount of compensation payable to the appellants under various separate headings. One of the headings was in relation to ‘non-pecuniary’ loss, which comprehended the ‘appalling wrong’ by compensating for loss of liberty, and loss of ‘life enjoyment’ all under the general heading of “Damage to character or reputation; hardship, including mental suffering; injury to feelings, and inconvenience”. Thus, the overall compensation amount includes a substantial sum which compensates the appellants for the appalling wrong done to them by the state.
    Another heading of compensation was ‘loss of earnings’ – in making the assessment, the assessor was trying to establish a figure which would as near as possible represent the amount of money the appellants would have had as ‘free money’ had they been free men. Had they been free men, some of their earnings would have been devoted to ‘living expenses’. The assessor deducts ‘living expenses’ from his calculations because that would never have been ‘free money’. In effect, the assessor says “Why should they have it now, when they wouldn’t have had it then?”
    This seems to be a mere accounting problem, and it is difficult to resist the logic of Lord Bingham.
    I would love to agree with Lord Rodger (and you) in the more liberal approach, but the questions relating to the emotive matters of the ‘appalling wrong’ are all dealt with in ‘non-pecuniary loss’. When it comes to loss of earnings, no emotion or ‘mea culpa’ considerations need intrude – it’s a straight arithmetical calculation.
    I think the majority got it right.
    best wishes
    alastair

    • Anonymous says:

      Alastair,
      I take the point.
      perhaps my problem is that the non-pecunairy loss is assessed at such a low rate for the deprivation of liberty for 18 years. There is a clear logic to the decision (and such would probably be the judicial approach if no compensation scheme was in place and there had been an application for loss to the court – and in fact 25% may be viewed by some as too low). My sympathy though lies with Lord Rodger’s comparison with “kidnapping” – hyperbolic perhaps, but would a court in a damages action against a kidnapper argue that while kidnapped the loss would have been reduced by living costs incurred outside. Perhaps? But the principle seems less comfortable there.
      I think it’s really finely balanced, moreso certainly than the news media have suggested (in their somewhat misleading reports).
      Best wishes
      Scott

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