"133.—(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted. (2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State. (3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State. (4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State."
"(4A) In assessing so much of any 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 the conviction; (b) the conduct of the investigation and prosecution of the offence; and (c) any other convictions of the person and any punishment resulting from them."
"When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him."
"In an action under the law of England and Wales or the law of Northern Ireland for damages for personal injuries (including any such action arising out of a contract) any saving to the injured person which is attributable to his maintenance wholly or partly at public expense in a hospital, nursing home or other institution shall be set off against any income lost by him as a result of his injuries."
"A number of considerations suggest that a deduction for personal living expenses should be made from the award for lost earning capacity during the 'lost years'. The first is the fact that the projected earnings could not have been earned except on the supposition that the plaintiff would have been alive to earn them. There can be no capacity to earn without a life. The maintenance of that life requires expenditure for personal living expenses. Hence the earnings which the award represents are conditional on personal living expenses having been incurred. It follows that such expenses may appropriately be deducted from the award. Against this, it is argued that if Jessica had been born a millionaire, her personal living expenses during the 'lost years' would have been met from other sources. But this does not negate the fact that in order to earn income one must live and incur the attendant expenses. It can be argued that not to make a deduction for personal living expenses is to introduce into the award for lost earning capacity for the 'lost years' a measure of overcompensation akin to the duplication which the law avoids in the case of an award for lost earnings during the plaintiff's actual lifespan. This deduction has been justified for the years before the plaintiff's actual projected death, on the ground that it avoids duplication between the award for cost of care and the award for lost earning capacity. But in fact, the 'lived years' and the 'lost years' cannot be so easily distinguished. The same reasoning applies to both: had the plaintiff been in a position to earn the monies represented by the award for lost earning capacity, she would have had to spend a portion of them for living expenses. Not to recognize this is to introduce an element of duplication and to put the plaintiff in a better position than she would have been in had she actually earned the monies in question."
"Common law principles require that there should be no double compensation. Past and future loss of earnings compensation embraces living expenses that will be paid for out of such earnings. In fact, because he was imprisoned, the applicant did not incur such living expenses. That provides a financial benefit for which credit must be given. The principle accords with the common law approach. See for example Hodgson v Trapp[1989] AC 807 in which, before the later statutory change, the court felt that past and future benefits must be deducted so as to avoid double compensation."
"The true analysis is that by reason of a miscarriage of justice, he has suffered a loss of earnings. Had he not been the victim of a miscarriage of justice, part of those earnings would have been spent on his own living expenses. 25%, as deducted here, probably represents a modest sum for such living expenses. Having dealt with the question of what he has lost by reason of his imprisonment, there is a requirement to consider any set-off against that loss for any expense which has not been occasioned by reason of his being in prison. It is in that context that the deduction from loss of earnings arises in relation to saved living expenses."
"The fact that the co-defendant Sheppard appears to have been extremely fortunate is not in our judgment a good reason for imposing a sentence on the appellant that would in our judgment be less than the facts of the case merit."
"Having regard to the seriousness of these matters and in particular the robbery at Chapel Hill Farm, I firmly conclude that the non-pecuniary loss award should be subject to a deduction of 25%. This I regard as the very least deduction that can reasonably be made, having regard to his criminal behaviour."
"There is no responsible basis upon which such serious convictions can be ignored in the assessment of non-pecuniary loss. In the circumstances, I make a reduction of 20% in respect of such matters from the total award of non-pecuniary compensation. This is slightly less than Vincent Hickey because of age and different record."
"[The assessor] simply disagreed with the 10% reduction which Sir David Calcutt had made in Robinson . Was he to make what he believed (and, in my judgment, permissibly believed) to be the correct deduction or was he bound to allow himself to be influenced by an award with which he disagreed? In my judgment it was neither irrational nor otherwise unlawful for Lord Brennan to apply deductions of 20-25% which were in all other respects unobjectionable."
"The mischief at which the provision is directed - the reason for enabling a deduction to be made for criminality from the entirety of the non-pecuniary suffering (save for personal injury) caused by the miscarriage of justice - is, in my view, two-fold. First, it enables account to be taken of the concurrent effect of any punishment for criminal offences of which the claimant has been rightly convicted and sentenced. Second, it allows an Independent Assessor to reflect the fact that an undoubted or hardened criminal may not suffer so greatly as a person of previous good character from many of the incidents of wrongful conviction and loss of liberty, in particular as to harm to reputation, injury to feelings, inconvenience, separation from family and other unpleasant aspects of incarceration …"
"… it is plain that sub-section (4A) permits deduction from the whole of the non-pecuniary award, save any sum included for personal injury" and, in para 113, said this: "
"In reaching his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs. The assessment will take account of both pecuniary and non-pecuniary loss arising from the wrongful charge or conviction and/or loss of liberty...."
"Common law principles require that there should be no double compensation. Past and future loss of earnings compensation embraces living expenses that will be paid for out of such earnings. In fact, because he was imprisoned, the applicant did not incur such living expenses. That provides a financial benefit for which credit must be given."
"Though the attention of our ancestors was directed especially to abuses of the prerogative, there can be no doubt that this statute declares the law that no money shall be levied for or to the use of the Crown except by grant of Parliament. We know how strictly Parliament has maintained this right - and, in particular, how jealously the House of Commons has asserted its predominance in the power of raising money.... In these circumstances, if an officer of the executive seeks to justify a charge upon the subject made for the use of the Crown (which includes all the purposes of the public revenue), he must show, in clear terms, that Parliament has authorized the particular charge."
"It makes no difference that the obligation to pay the money is expressed in the form of an agreement. It was illegal for the Food Controller to require such an agreement as a condition of any licence. It was illegal for him to enter into such an agreement. The agreement itself is not enforceable against the other contracting party; and if he had paid under it he could, having paid under protest, recover back the sums paid, as money had and received to his use."
"There is no question here of requiring the applicant to pay for his board and lodging in prison, nor any question of treating Mr O'Brien in a way that puts him at a disadvantage compared to such a convicted prisoner. The true analysis is that by reason of a miscarriage of justice, he has suffered a loss of earnings. Had he not been the victim of a miscarriage of justice, part of those earnings would have been spent on his own living expenses. 25%, as deducted here, probably represents a modest sum for such living expenses. Having dealt with the question of what he has lost by reason of his imprisonment, there is a requirement to consider any set-off against that loss for any expense which has not been occasioned by reason of his being in prison. It is in that context that the deduction from loss of earnings arises in relation to saved living expenses."
"A millionaire, accustomed to live at a palatial hotel, where his weekly expenses far exceed the charges of the nursing-home to which, after being injured by the defendant's negligence, he is transplanted, would recover nothing by way of special damage. Could it really lie in the mouth of the wrongdoer in such a case to say: 'I am entitled to go scot-free; I have, by my negligent act, not merely inflicted no loss but conferred a net financial benefit on the plaintiff by saving him from the consequences of his habitual extravagance'?"
"When a plaintiff is injured and as a result is paid no wages his immediate real loss is that part of his net earnings that were available for current expenditure. In respect of this part of his earnings the object of which is to provide income available for current expenditure the tortfeasor is, subject to sums necessarily spent to earn the income, entitled to no credit for expenditure saved as a result of the injury; the principle that it is no concern of the tortfeasor how the plaintiff chooses to spend his income applies."
"This is necessarily a hypothetical figure in the case of a 'lost years' claim, since the plaintiff does not survive to earn the money: and, since there is no cost of care claim (the plaintiff being assumed to be dead), it falls to be deducted from the loss of earnings award. But where, as in the present case, the expectancy of life is not shortened but incapacity exists, there will be a cost of care claim as well as a loss of earnings claim. How should living expenses be assessed and deducted in such a case? One approach, analogous to the method necessarily adopted in 'lost years' cases, would be to attempt an assessment of how much the plaintiff would have spent and upon what - always a most speculative exercise. How, for instance, could anyone tell how Dr Lim would have ordered her standard of living, had she been able to pursue her career? Another approach is, however, available in the case of a living plaintiff. In Shearman v Folland[1950] 2 KB 43 the Court of Appeal deducted what it described as the 'domestic element' from the cost of care. Inevitably, a surviving plaintiff has to meet her living expenses. This approach, being on the basis of a future actuality (subject to the uncertainties of life), is far less hypothetical than the former (which, 'faute de mieux', has to be adopted in 'lost years' cases). It is a simpler, more realistic, calculation and accords more closely with the general principle of the law that the courts in assessing compensation for loss are not concerned either with how the plaintiff would have used the moneys lost or with how she (or he) will use the compensation received."
"It is clear that a plaintiff cannot recover for the expense of providing for basic necessities as part of the cost of future care while still recovering fully for prospective loss of earnings. Without the accident, expenses for such items as food, clothing and accommodation would have been paid for out of earnings. They are not an additional type of expense occasioned by the accident. When calculating the damage award, however, there are two possible methods of proceeding. One method is to give the injured party an award for future care which makes no deduction in respect of the basic necessities for which he would have had to pay in any event. A deduction must then be made for the cost of such basic necessities when computing the award for loss of prospective earnings: ie the award is on the basis of net earnings and not gross earnings. The alternative method is the reverse: ie to deduct the cost of basic necessities when computing the award for future care and then to compute the earnings award on the basis of gross earnings. The trial judge took the first approach, reducing loss of future earnings by 53 per cent. The Appellate Division took the second. In my opinion, the approach of the trial judge is to be preferred. This is in accordance with the principle which I believe should underlie the whole consideration of damages for personal injuries: that proper future care is the paramount goal of such damages. To determine accurately the needs and costs in respect of future care, basic living expenses should be included. The costs of necessaries when in an infirm state may well be different from those when in a state of health. Thus, while the types of expenses would have been incurred in any event, the level of expenses for the victim may be seen as attributable to the accident. In my opinion, the projected cost of necessities should, therefore, be included in calculating the cost of future care, and a percentage attributable to the necessities of a person in a normal state should be reduced from the award for future earnings."
"In calculating loss of future earning capacity in cases where an award for future care is made, a deduction is made from the award for lost earning capacity for living expenses to avoid duplication between the two heads of damage. The Court of Appeal in this case applied similar reasoning to the plaintiff's pre-trial lost income. However, the basis for making a deduction on this account - duplication between two heads of damage - was lacking, there being no award for pre-trial cost of care. No case was cited to us in which a deduction for living expenses has been made from damages for pre-trial loss of earning capacity and I see no need to introduce such a practice."
"There can be no capacity to earn without a life. The maintenance of that life requires expenditure for personal living expenses. Hence the earnings which the award represents are conditional on personal living expenses having been incurred. It follows that such expenses may appropriately be deducted from the award…. It can be argued that not to make a deduction for personal living expenses is to introduce into the award for lost earning capacity for the 'lost years' a measure of overcompensation akin to the duplication which the law avoids in the case of an award for lost earnings during the plaintiff's actual lifespan. This deduction has been justified for the years before the plaintiff's actual projected death, on the ground that it avoids duplication between the award for cost of care and the award for lost earning capacity. But in fact, the 'lived years' and the 'lost years' cannot be so easily distinguished. The same reasoning applies to both: had the plaintiff been in a position to earn the monies represented by the award for lost earning capacity, she would have had to spend a portion of them for living expenses. Not to recognize this is to introduce an element of duplication and to put the plaintiff in a better position than she would have been in had she actually earned the monies in question."
"any saving to the injured person which is attributable to his maintenance wholly or partly at public expense in a hospital, nursing home or other institution shall be set off against any income lost by him as a result of his injuries."
"The principle served by this approach is that where right thinking members of the public looking at the respective sentences would say that something had gone wrong the court should step in … It should not be supposed, however, that the court will be prepared to invoke the principle and make the reduction unless there is a really marked disparity, for unless that condition is satisfied it will not regard any sense of grievance felt by an appellant as having sufficient justification … It is only if a fair-minded and right-thinking person would feel that the disparity involved some unfairness to the appellant, as distinct from a possibly rueful feeling that his associate has been more fortunate in his treatment, that a court should intervene …"
"If there be honour among thieves and armed robbers, let him who has been properly and severely sentenced rejoice in the good fortune of his companion who has received a lenient sentence. Let him not complain that he himself has received a proper sentence."
"The precise style in which she would probably or might well have lived is, in our view, a collateral matter, and the two payments are not in pari materia."
"It is a simpler, more realistic, calculation and accords more closely with the general principle of the law that the courts in assessing compensation for loss are not concerned either with how the plaintiff would have used the moneys lost or with how she (or he) will use the compensation received."
"When a plaintiff is injured and as a result is paid no wages his immediate real loss is that part of his net earnings that were available for current expenditure. In respect of this part of his earnings the object of which is to provide income available for current expenditure the tortfeasor is, subject to sums necessarily spent to earn the income, entitled to no credit for expenditure saved as a result of the injury; the principle that it is no concern of the tortfeasor, how the plaintiff chooses to spend his income applies."
"This dichotomy [between the two questions identified by Lord Reid in Parry v Cleaver[1970] AC 1 , 13, namely, first, what did the plaintiff lose as a result of the accident i.e. what sums will he no longer receive and, secondly, what has he in fact received which he would otherwise not have received], however, must not be allowed to obscure the rule that prima facie the only recoverable loss is the net loss."
"Having regard to the seriousness of these matters and in particular the robbery at Chapel Hill Farm, I firmly conclude that the non-pecuniary loss award should be subject to a deduction of 25%. This I regard as the very least deduction that can reasonably be made, having regard to his criminal behaviour."