High Court papers filed in case where miscarriage of justice victims were charged ‘bed and board’ for their time in prison

Martin Shipton

Lawyers acting for two miscarriage of justice victims, including one from Wales, have lodged papers at the High Court to challenge the decision of successive UK governments to charge them for money they “saved” during their time in prison.

Michael O’Brien spent 11 years in jail for the murder of Cardiff newsagent Phillip Saunders before being exonerated, while Paul Blackburn, from Salford, was in jail for nearly 25 years after bring wrongly convicted of attempted rape and attempted murder of a nine-year-old boy.

Deductions

In both cases, when their compensation for wrongful imprisonment was assessed, deductions were made for the cost of their “bed and board” while in jail. This decision was supported by the former Conservative government, and has been upheld by the Labour Secretary of State for Justice, Shabana Mahmood.

Lawyers representing the two men are now asking the High Court to judicially review the deductions.

The claim, filed by Edward Fitzgerald QC and junior barrister Pippa Woodrow, together with Hickman Rose Solicitors, states: “The claimants are both victims of significant miscarriages of justice which saw them wrongly imprisoned for substantial periods, including during their childhood and/or young adulthood.

“Both were later exonerated and made applications for compensation as victims of miscarriages of justice pursuant to Section 133 Criminal Justice Act 1988. They were deemed eligible and referred for assessment to an independent assessor (then Lord Brennan KC) who determined that their awards should be subject to deductions for ‘saved living expenses’ (‘SLE’) – reflecting the amount of money that they were hypothetically estimated to have ‘saved’ by virtue of being accommodated in prison.

“This practice was found to be permissible by the House of Lords in O’Brien and others v independent Assessor [2007], although Lord Rodger, in dissent, likened the deduction to charging people in cases of ‘prolonged kidnapping’, concluding: “…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.’

Public scrutiny

It continues: “Following recent public scrutiny and outcry as to this practice, the then Secretary of State for Justice, Alex Chalk MP, declared on August 6 2023 that victims of wrongful convictions and miscarriages of justice would no longer have to face the potential for SLE deductions (which in practice had not been applied in over 10 years) on the basis that “Fairness is a core pillar of our justice system and it is not right that victims of devastating miscarriages of justice can have deductions made for saved living expenses. This common-sense change will ensure victims do not face paying twice for crimes they did not commit.”

“This challenge is to the lawfulness of the defendant’s subsequent decision that, notwithstanding the acknowledged unfairness of such deductions, some victims of miscarriages of justice, such as the claimants, will continue to be denied amounts they were judged to have ‘saved’ by way of living expenses whilst they were wrongly imprisoned. In ‘the Decision’ dated August 2 2024, the defendant determined that no steps would be taken to ameliorate the unfairness occasioned to victims who have already received awards subject to SLE deductions or to reimburse the deductions – either by way of retrospectively applying the revised guidance announced on August 6 2023, or by way of accepting further applications limited to the amount of SLE deductions previously made (or in any other way).

“The claimants submit that the Decision was unlawful on the grounds that iIt discriminates against the claimants, in breach of Article 14 (read together with Articles 5, 8 and Article 1 Protocol 1) [of the European Convention on Human Rights in that it subjects them to unjustified and disproportionate differential treatment based on their status as recognised victims of miscarriages of justice (who were therefore entitled to compensation) prior to August 6 2023 and/or victims of miscarriages of justice whose compensatory awards were processed prior to August 6 2023;The Decision failed to take account of material considerations (and took into account irrelevant matters);the defendant’s decision was in breach of her common law duty to provide a reasoned decision insofar as no reasons at all were provided in (implicitly) refusing to receive or accept the claimants’ fresh application for compensation (limited to the amount of SLE deductions previously made); and the decision was otherwise irrational having regard to the factors set out in [an earlier case brought against the Secretary of State for Work and Pensions].”

Mr O’Brien said: “I am pleased that the papers have been filed at the High Court and hope that justice will prevail.”