Insult to injury
The recent premature death of Sally Clark shows the immense human cost which those wrongly imprisoned can suffer. It is against that background that the recent House of Lords decision in O'Brien and others (Appellants)v.Independent Assessor (Respondent) is so unfortunate.
^ TOPDeduction for living expenses
What the decision effectively provides for is that those wrongly imprisoned should have a form of deduction from their compensation to reflect the personal living expenses which they would inevitably have had to have spent to provide the necessities of life had they not been in prison. (There were other issues in the appeal but this is the only issue with which this article is concerned, and the only issue which is being referred to when the approach of the various judges is set out). Obviously as the appellants were imprisoned (albeit wrongly), they had not incurred those expenses. The assessor had held that such expenses should be deducted. Maurice Kay J in the administrative court had decided that they should not be. The Court of Appeal restored the assessor's opinion, and the House of Lords upheld that decision by a 4 to 1 majority.
^ TOPNot intended as a charge
Their Lordships were quite clear that the intent was to make a deduction to reflect living expenses which would inevitably have been incurred. This was not a question of "charging" the appellants for the privilege of imprisonment. The appellants said as a matter of principle that that was wrong, and that there should be no deduction.
^ TOPLord Rodger dissented
The dissenting judgment of Lord Rodger was both cogent and illuminating. The basis for the argument deployed by Lord Rodger was a starting point set out in the following paragraph: "61. Before going any further, it is right to recall that, in the words of Lord Bridge of Harwich in Hussain v New Taplow Paper Mills Ltd [1988] 1 AC 514, 527, prima facie the only loss which a claimant can recover is his net loss. But, as Lord Reid observed in Parry v Cleaver [1970] AC 1, 13, there is no universal rule and the common law treats the matter as one depending on justice, reasonableness and public policy.".
^ TOPInevitably viewed as a charge
Whilst their Lordships did not intend to effectively charge the appellants for the period of time that they were in prison, to the man in the street, and even more so to the man wrongly in the prison cell, that looks very much like the effect of their decision. Incurring ordinary living expenses in normal circumstances is vastly different in kind from the circumstances in which the prisoners found themselves. If one starts from the view that ultimately it is a question of principle which should depend upon "Justice reasonableness and public policy" then such a deduction ought not to be made. However cogent the legal reasoning in favour, public policy should be against it. Any other decision sadly, although this was not the intent, merely adds insult to injury.