Hickey & Ors v Independent Assessor [2004] EWCA Civ 340

Case No C1/2003/1732/1742/1733[2004] EWCA Civ 340
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE MAURICE KAY)
Venue Royal Courts of JusticeDate Wednesday, 25 February 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE MAY
Between
MICHAEL HICKEY & OTHERSAppellant-v-
Between
THE INDEPENDENT ASSESSORRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR PHILIP ENGLEMAN (instructed by Hodge Jones & Allen, 31-39 Camden Rd, London NW1 9LR) appeared for ClaimantsMR ROBIN TAM (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T

LORD JUSTICE MAY:

[1]These renewed applications for permission to appeal concern proceedings before Maurice Kay J (as he then was) in a judgment handed down on 16th April 2003. The claim before the judge was for judicial review of a decision of Lord Brennan QC, as Independent Assessor, under section 133 of the Criminal Justice Act 1988. This arose out of the conviction in 1979 of the applicants Michael Hickey and Vincent Hickey of the murder of Carl Bridgewater. Their convictions were subsequently set aside by the Court of Appeal after they had served long periods in custody.[2]The background is perhaps best summed up in the first two paragraphs of Maurice Kay J's judgment in these terms:
"At Stafford Crown Court on 9 November 1979 four men were convicted of the murder of Carl Bridgewater. They included Michael Hickey, who was then aged seventeen, and Vincent Hickey who was aged 25. Michael Hickey was sentenced to detention during her Majesty's pleasure, with a concurrent sentence of eight years' detention for aggravated burglary. At the same time he was also sentenced to concurrent sentences of twelve years' detention for two unconnected armed robberies. Vincent Hickey was sentenced to life imprisonment for murder, with a recommendation that he serve a minimum of twenty five years, and to 10 years concurrent for the aggravated burglary. He was also sentenced, concurrently, to 12 months' imprisonment for an unconnected offence of deception. Both men remained in custody until they were released on bail in February 1997. Earlier appeals, had been unsuccessful but on 30 July 1997 the Court of Appeal Criminal Division quashed the convictions for murder and aggravated burglary. The equivalent convictions of their co-accused, Patrick Molloy (who had died in prison) and James Robinson, were quashed on the same occasion. Michael O'Brien, together with two co-accused, was convicted at Cardiff Crown Court on 20 July 1988 of the robbery and murder of Philip Saunders. He was sentenced to life imprisonment and he remained in custody until he was released on bail on 23 December 1998. On 25 January 2000 his conviction, and those of his co-accused, were quashed by the Court of Appeal Criminal Division."
[3]Following the quashing of their convictions, each of these three applicants made applications to the Secretary of State for compensation. The compensation was claimed under section 133 of the Criminal Justice Act 1988, and the terms of that section appear in paragraph 3 of Maurice Kay J's judgment.[4]Lord Brennan, the Independent Assessor, made various awards in various sums which were to some extent broken down either as he thought fit or as required by the legislation.[5]Michael and Vincent Hickey applied for permission to appeal in two respects. The first respect related to an issue, put as one of construction under section 133(4A) of the Criminal

Justice Act 1998, that provides:

"In assessing compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to- (a) the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from conviction; (b) the conduct of the investigation and prosecution of the offence; and (c) any other convictions of the person and any other punishment resulting from them."
[6]The Independent Assessor sought to make deductions from the non-pecuniary loss element of the awards on the grounds of the other convictions of Michael and Vincent Hickey. The submissions advanced on their behalf was that the classes of non-pecuniary loss for which a deduction is permitted is restricted to the categories of either personal injury or injury to feelings, but does not encompass damages awarded in respect of misconduct by the authorities, the loss of liberty and aggravated damages. The judge rejected this construction on the basis that the words in question were simply Parliamentary shorthand for non-pecuniary loss.[7]The submission, in brief, is that the words "or similar damage" in section 133(4A) should be construed by reference to the words which precede them "suffering and harm to reputation", and that the statutory provision is not apposite to enable deductions to be made from loss attributed to the conduct of the authorities, in this case the loss of liberty and circumstances in which the injuries were sustained, or aggravated damages.[8]Lord Justice Buxton, in refusing permission to appeal, expressed the view that the learned judge's construction was plainly correct. I am rather more cautious about that and, without necessarily holding out enormous hope that the appeal would succeed, I nevertheless consider that the point is sufficiently arguable to justify the giving of permission to appeal. In particular, it seems to me at least arguable that the damages awarded, for instance in respect of the conduct of the police, are not the kind of damages which would justify a deduction on account of the conviction of the applicants for something unconnected with that conduct. I say no more than that. But it does seem to me that it is at least reasonably arguable and that permission should be granted.[9]The second issue for which application is made concerns consistency and equality of treatment. The appellants contend that there is a substantial and unexplained difference between the award of aggravated damages which Sir David Calcutt made to Mr Robinson (which was £172,000), and the awards (or non-awards) made for Vincent and Michael Hickey; Vincent Hickey received no award for aggravated damages and Michael Hickey received £35,000. It is also suggested that either in isolation, or when taken together with the deduction made in the three cases for non-pecuniary loss, Robinson had ten per cent deducted; Vincent Hickey, 25 per cent; Michael Hickey, 20 per cent. The suggestion is that the principles of certainty and equality have been breached.[10]This did not impress Buxton LJ. He was of the view that Lord Brennan was entitled to take whatever view he considered of these matters, and was not obliged to do something which he considered to be wrong because Sir David Calcutt had done something different in a different case.[11]In my judgment, this again is something which, in a case of this importance, justifies the grant of permission to appeal.[12]There is a third issue to which the same reasoning applies, in relation to the awards of non-pecuniary loss made in respect of Vincent and Michael Hickey, and the application seeks to challenge the judge's decision in paragraphs 31 and 32 of the judgment.[13]For those brief reasons, and without holding out undue hope that the appeals will necessarily succeed, in my judgment nevertheless permission should be granted.[14]The Independent Assessor also applies for permission to appeal to a greater extent than Buxton LJ allowed. There are three grounds of appeal. The first concerns the judge's decision that Lord Brennan was obliged to break down his award into a greater number of categories than he had done. It was a decision which, in particular, related to damages of the kind discussed in the case of Thompson v Metropolitan Police Commissioner [1998] QB 498. Buxton LJ said of that that the judge was right in the construction of the note that he set out in paragraphs 12 to 15 of his judgment. Buxton LJ did not grant permission to appeal in respect of that construction. The construction urged by the Assessor would, he said, attribute to the phrase:
"Principles analogous to those governing the assessment of damages for civil wrongs. Reference to principles so trite, as to render the point not worth making at all. Nevertheless, in order to show that the Assessor erred in any particular case, it is necessary to demonstrate that the law and practice of assessment of damages is sufficiently certain as to yield a relevant principle that the Assessor should have applied but did not do so."
Buxton LJ considered it arguable that the authorities set out by the judge in his paragraph 21 did not pass that test. That, he said, was the only basis on which he considered the judge's approach to be open to challenge, and he did not give permission to argue the more general considerations about impracticality and inflation, which are fully disposed of by the judge.[15]Mr Tam has set out at some length in his skeleton argument the basis upon which the Independent Assessor seeks to enlarge that permission. For my part, I am persuaded that an argument embracing that which Buxton LJ has given permission for is almost bound to want to stray more widely and into the parts of the argument where he did not give permission. On that rather pragmatic basis, I think it is appropriate that the permission should be so enlarged.[16]The second ground of appeal, upon which Buxton LJ did not grant permission, concerned aggravated compensation. It is suggested that the judge was wrong to treat the issue of compensation for aggravating features as if it were aggravated damages and, as if aggravated damages were a type of damages distinct from compensation for actual loss. Consequently, he was for various reasons wrong in holding that the defendant must identify specifically with reasons whether an aggravated award was being made. Those are set out in five subparagraphs on pages 4 and 5 of the grounds of appeal. In my judgment, those are at least, in totality, sufficiently arguable to be added to the debate that the court should entertain.[17]The third ground of appeal was one that Buxton LJ did give permission, albeit with some hesitation and, therefore, does not fall for renewal before this court today.[18]For those brief reasons, I extend the permission in the case of the Independent Assessor which Buxton LJ himself gave. (ORDER: Application allowed. Hearing on 16th March. Respondent's notice, if advised, for Mr O'Brien and a skeleton argument by 5th March. Any additional or supplemental skeleton arguments on behalf of the Hickeys or the Independent Assessor by the same date. Counsel to liaise with regard to other matters. Liberty to apply. Extensions of time granted. Permission to amend the notice of appeal in relation to Michael Hickey granted. A respondent's notice on the part of the Hickeys to be lodged by 5th March. Time estimate one to one-and-a-half days. To be heard before three Lords Justices.)