Tim Worstall

Jail and Living Expenses

There’s going to be uproar about this, I know, as there was when the case was last heard at the next level down. Those who were jailed yet innocent, when they get their compensation, find that they are charged for the living expenses they didn’t have to pay while in jail.

Three men who spent years in jail because of miscarriages of justice
must pay “living expenses” for the time they spent behind bars, the law
lords ruled yesterday.

By four to one, the judges decided that,
although the men were wrongfully jailed, they must forgo 25 per cent of
their compensation.

Two of the men, Michael Hickey and his
cousin, Vincent, were wrongly convicted of the murder of a newspaper
boy, Carl Bridgewater, 13, who was shot dead in 1978 at Yew Tree Farm,
Wordsley, West Midlands. Their convictions were quashed by the Court of
Appeal in 1997 after Vincent Hickey had served more than 13 years and
Michael Hickey more than 12 years.

Lord Brennan, QC, the Home
Office-appointed assessor, awarded Michael Hickey £990,000 and Vincent
Hickey £506,220, subject to 25 per cent deductions to pay for their
saved “board and lodgings” expenses.

In
a second case, Michael O’Brien, who was 20 in 1988 when he was
convicted of the murder of a Cardiff newsagent, was awarded £670,000
compensation after spending ten years in jail. His award was subject to
the same deductions.

The three appealed to the House of Lords
against a Court of Appeal ruling that the Independent Assessor was
entitled to a deduction from compensation for loss of earnings made to
victims of long-running miscarriages of justice cases to reflect the
necessities of life which they would have had to buy from their wages
had they been at liberty.

Couple of things. No, no one is being told to pay the prison for the food and board. That isn’t what’s happening at all. Rather, it’s the logical outcome of a basic concept. That when a wrong has been done, compensation should be sufficient (and only sufficient, not more than) to put the aggrieved party in the situation they would have been in had the wrong not been done. To do that you need to calculate what that sum of money is. Yes, add up the wages that would have been earned if not in jail. Yes, there might be some award for pain and grief (although I don’t think there is under English law)  but it’s also true that you have to add up what wasn’t spent as well. That’s how we get to the final figure.

We’re trying to put people back to where they would have been without the mistake.

Anyway, to repeat (although I’m sure this point is going to get lost in howls of outrage out there) the men are not being told to pay for their room and board. It’s simply part of the calculation of what compensation they should get.

In

21 responses

  1. DocBud Avatar
    DocBud

    I don’t think there is anyway you can do these calculations. Taking away 13 years of someone’s life can never be adequately compensated for. The persons would have a had at least 4 weeks paid annual leave wich they would have spent relaxing with family (as most do). How do you give that back? What about the possibility that they would have prudently saved and invested some of their income, is that allowed for in the calculations?
    If one must try and calculate such things, it should be borne in mind that the years of potential earnings that a person has lost are not the years they spent in jail but the equivalent number of years at the end of their working lives. Assuming that earning potential increases with experience and any vocational qualifications one gathers through one’s working life, by cutting short a person’s working life, the state takes away the most lucrative years, so those are the years they should be compensated for losing or they can never be back where they started. That’s if you ever can be in the “no smoke without fire” society we live in.

    Reply
  2. Kay Tie Avatar
    Kay Tie

    Hmmn. Not sure I buy the basic argument about lost salary + expenses. By that argument they should saddle someone with large arbitrary debts for the borrowing they would have done to buy a car which would have depreciated. Where does this hypothetical life projection end?

    Reply
  3. Marcin Tustin Avatar
    Marcin Tustin

    I’m not convinced that this is coherent, because they would have been wealthier had they been able to spend the money deducted on actual food and lodging that they wanted, rather than what they had. Thus, a proper calculation on this basis is impossible.
    In any case, compensation to put one party in the position they would occupy is a private law concept, which has to strike a balance between two private parties. By contrast, deliberate wrongdoing by the state is always worse than that by private parties, because in the case of wrongdoing, there are usually self-help remedies which do not exist here, or we rely on the state to right such wrongs. It is unseemly for the state then to make tenuous calculations about how its victims’ lives would have turned out had they not been so wronged.

    Reply
  4. Tim Almond Avatar
    Tim Almond

    £10K per annum for board and lodging in a room smaller than a bedsit?

    Reply
  5. Rajesh Avatar
    Rajesh

    Tim
    And what about the possibility that instead of renting they would have bought a house & noe have an asset worth several hundred thousands of pounds.

    Reply
  6. john b Avatar
    john b

    “£10K per annum for board and lodging in a room smaller than a bedsit?”
    I’d be interested to see the logic behind these calculations too.
    AIUI, prison food costs about a quid a meal, so that’s £1100 a year. According to http://www.netrent.co.uk, you can get a private room in a shared house in Cardiff (fair-ish comparison, for Mr O’Brien at least) for under £200pcm, so £2400 a year.
    Anyone know what the extra £6500 is for?

    Reply
  7. Lorenzo Avatar
    Lorenzo

    So they are not being charged for their room and board but they money still goes to the State. Presumably, the State provided some consideration since it is entitled to the 25%. What is that consideration then?

    Reply
  8. Umbongo Avatar
    Umbongo

    “Anyone know what the extra £6500 is for?”
    Security

    Reply
  9. Paul Avatar
    Paul

    I think they’d swap the money for action taken against the Police who forged a confession in the Bridgewater case.
    So far ….. nothing.

    Reply
  10. johnm Avatar
    johnm

    The Times reports that each man will lose £40-50,000 pounds. I can’t reconcile this with the 25%, but this amounts to approx £4,100 per annum.
    John Band asks what happens to the extra £6500? This is based upon the £10,000 figure, so John’s question, while still valid, must be modified to a concern for the extra £1,700, but of course this takes no account of inflation, which would tend to raise the amount.
    I’m confused by another aspect. When the court originally ordered compensation, I should have thought that any such calculation was incorporated in the original deliberations. Why on earth would an award be made subject to deductions of any kind?
    Tim adds: Because that’s just the way they do the calculations. They add up all of the costs first (lost wages etc etc) and then deduct the “benefits”. They could avoid all of this terribly easy simply by changing the way they do the calculations in order to fudge the point. but that is the way the law is and indeed, the way it should be.
    We should add up all of the costs and benefits.

    Reply
  11. johnm Avatar
    johnm
    Reply
  12. William Norton Avatar
    William Norton

    There’s nothing in this that differs from any other case of litigation for damages. Despite the views of some readers here that it is “impossible”, I can assure you that the courts have been doing this sort of thing for a few hundred years now. It’s quite straightforward. In personal injury cases they even publish books giving the going rate for a foot, an eye, an arm etc.
    Compensation is to cover the loss which someone has actually incurred, and that would be the net loss. In effect what the assessor is saying is that before they were incarcerated they tended to spend about 25% of their income on board and lodgings, which cost they would have incurred had they been free so it cannot form part of their net loss. For what it is worth, that 25% actually sounds on the light side and it probably represents an across-the-board average used to avoid tedious investigations into the personal lifestyle of the people concerned.

    Reply
  13. Martin Avatar
    Martin

    William,
    Read Marcin’s comment above – he hits the nail on the head.
    These people would not have been in this position had the State not defectively deprived them of their liberty on its own initiative.
    The logical corollary of this stupid and inequitable decision is that wrongly convicted prisoners should neither eat nor sleep, and attempt escape at every opportunity, for if they are wrongly convicted they are not in any kind of ‘lawful custody’.
    This system is wrong, wrong, wrong. If governments wish to engage in such illiberal penny-pinching, they should be forced to justify their methodology in front of a judge at first instance.
    Hopefully they’ll appeal to Strasbourg and the public choice wally who thought this madness up will get their backside kicked.
    Tim adds: Actually, I think Willaim’s hit it on the head there. Rather the answer I was groping for myself.

    Reply
  14. Martin Avatar
    Martin

    Tim,
    I’m afraid I don’t agree.
    Of course the quantum of damages is net loss. William is quite right to point out that legal texts include figures payable for the loss of bodily parts. That gripping tome ‘McEwan and Paton on Damages’, which I am sure is never out of your hand, includes an inflation calculator to help the eager scrivener determine what £500 in 1958 would be worth now.
    However, the contentious issue is not the nature of the damages but the nature of the litigants. Consider this – The State imprisons people wrongfully. There used to be another name for that type of behaviour. It was called ‘kidnapping’.
    Now, I don’t know about English law but under Scots law wrongful imprisonment is still, to the best of my knowledge and belief, an actionable delict (tort). What the Lords passed yesterday is the precise equivalent of a kidnapper demanding that any sums they spent on their victim’s maintenance be offset against the damages payable to them.
    Which is absurd. Don’t you agree?
    Tim adds: “an actionable delict (tort).”
    Correct. And the response is. correctly, to return the plaintiff to where he was. That includes costs and benefits.

    Reply
  15. Martin Avatar
    Martin

    No, it does not return him to where he was.
    If that were the case, then it would also be the case that kidnappers could legitimately claim a right of offset against the damages they would require to pay their victims for their maintenance while kidnapped.
    If one set of circumstances is de minimis, the other must be also.

    Reply
  16. Not Saussure Avatar
    Not Saussure

    Tim somewhat oversimplifies (deliberately, I’m sure) the way the compensation’s calculated; as their lordships explain, it comprises several elements:

    When, as here, the Secretary of State has determined that victims have a right to compensation under the section, an independent assessor (in the appellants’ case, Lord Brennan QC) assesses the amount of the compensation payable, which must cover heads of loss not susceptible to precise arithmetical calculation (loss of liberty, loss of family and social life, injury to reputation, emotional suffering and anguish, mental illness caused by the experience of imprisonment and such like) and also heads of loss susceptible to such calculation (loss of past and future earnings, loss of pension rights, relatives’ visiting expenses, expenses incurred in securing release, legal expenses and so on). The former heads are conveniently referred to as non-pecuniary loss, roughly equivalent to general damages recoverable on proof of an actionable civil wrong, the latter as pecuniary loss, roughly equivalent to special damages.

    Before condemning the ruling, people might want to read the whole thing, including the reasoning behind it; for what little it’s worth, I think their lordships (and Tim) have got it right.

    Reply
  17. Not Saussure Avatar
    Not Saussure

    Clarification: while you can certainly question the figures used in calculating the overall settlement, it seems to me perfectly right that the total should include an element for pecuniary loss as well as non-pecuniary loss, and I don’t see how you can calculate the lost earnings element of the pecuniary loss without taking into account — at least with a notional sum — what the men would have had to spend on the necessities of life.

    Reply
  18. Martin Avatar
    Martin

    NS,
    See above.

    Reply
  19. Not Saussure Avatar
    Not Saussure

    There’s quite a lot ‘above’, Martin. If you mean your example about the kidnappers, I don’t see it that way; the state (or the kidnappers) aren’t demanding anything — the law demands that, in addition to the non-pecuniary losses, people wrongfully convicted are also awarded damages for their pecuniary losses. Pecuniary losses are calculated on the basis of putting you back to where you would have been; that’s the general legal principle, as you’ll see if you read the judgement.
    Lord Bingham says (para 23), having reviewed the statute and case law,

    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.
    Where do you fault his reasoning? I doubt there’s any case law on the subject of kidnappers, but the case law on calculating loss of earnings as a result of accidents or negligence, on which their lordships drew, works on this principle as you’ll see from the preceding paragraphs in the judgement.

    Reply
  20. dave heasman Avatar
    dave heasman

    Bingham : – “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.”
    But if they as free men had to spend the money to keep themselves alive, they would have done it as free men. Exercising a certain amount of free choice. The culture of this country has been for many years that the spending of money for personal maintenance is more than just basic maintenance, it is an expression of individuality and a marker of freedom. Being compelled to wear prison uniform, live in a bare room in unending noise and filth, not allowed to make a single decision for oneself about one’s physical surroundings, because of someone else’s unpunished corruption, is surely not a benefit with a positive cash value?

    Reply
  21. Not Saussure Avatar
    Not Saussure

    But if they as free men had to spend the money to keep themselves alive, they would have done it as free men
    Indeed. And it’s in compensation for losing their freedom that they also receive compensation for non-pecuniary loss as well as compensation for loss of earnings.

    Reply

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