Judge upholds decision to charge miscarriage of justice victims for ‘bed and board’ in jail

Martin Shipton

A Welshman who spent 11 years in jail for a murder he didn’t commit has been refused leave to appeal against a decision by Justice Secretary Shabana Mahmood that he and fellow miscarriage of justice victim Paul Blackburn should make “bed and board” payments towards the cost of their imprisonment.

Michael O’Brien and two other men were wrongly convicted of killing Cardiff newsagent Phillip Saunders in 1987. They became known as the Cardiff Newsagent Three and had their convictions quashed following a lengthy public and media campaign that drew attention to police misconduct in the handling of the case.

After his vindication and release, Mr O’Brien was awarded £650,000 in compensation for the time he spent in prison. But Lord Brennan, an independent assessor, decided that £37,000 should be deducted from the amount he received to account for the living costs like rent and food he would have had to pay for if he hadn’t been jailed.

Costs

Mr O’Brien challenged the decision in the High Court and his legal team succeeded in overturning the decision. But the UK Government won in the Court of Appeal and Mr O’Brien withdrew his application for the case to go to the House of Lords – at the time the highest court in the UK – after being told that he was likely to be ordered to pay costs of around £140,000 if he lost again.

Having abandoned his legal battle, Mr O’Brien resigned himself to having lost the “bed and board” money permanently. But the issue came back into the news in July 2023 when the rape conviction of Andrew Malkinson, who spent 17 years in jail, was quashed after forensic tests proved that another man was the perpetrator.

When the issue of compensating Mr Malkinson for his wrongful imprisonment was raised, it was suggested that he would have a “bed and board” payment deducted.

Rishi Sunak

However, the then Tory Prime Minister Rishi Sunak was said to hold the view that those who had been wrongly convicted should not have to pay living expenses for the time they spent in jail, on the basis that the practice is unfair. It was decided that Mr Malkinson would not have a sum for “bed and board” deducted from his compensation. A review was launched into whether other wrongly convicted ex-prisoners should get refunds on their “bed and board” payments.

However, since Labour returned to power at Westminster, Ministers including Ms Mahmood have decided to save money by not reimbursing the likes of Mr O’Brien.

Mr O’Brien joined forces with Mr Blackburn, who spent 25 years in jail for a crime he did not commit yet was charged £100,000 for “bed and board”.

Mr Blackburn was convicted as a teenager in 1978 for the attempted murder and sexual assault of a young boy in Warrington, Cheshire. He was arrested shortly after turning 15. The only notable evidence against him was a confession he signed after four hours of questioning by two senior officers, with no parent or lawyer present.

The appeal court, which quashed the conviction in 2005, two years after he was released on licence, said the police claim he wrote the confession unaided “can now be seen to have been untrue” after linguistic analysis showed it was littered with police jargon almost certainly unknown to a poorly-educated teenager. The ruling said this cast doubt on other police claims.

Leave to appeal

Mr Justice Ritchie has now refused Mr O’Brien and Mr Blackburn leave to appeal because he didn’t consider they had a realistic prospect of success.

In his judgment he took the view that the fact that the government had agreed more generous compensation terms for later miscarriage of justice victims did not mean they had been discriminated against in a legal sense; that there was no legal requirement for the government to retrospectively compensate earlier victims on the same basis as those who benefitted from a change of policy; that it was incorrect for the claimants to argue that they had not been provided with a reasoned decision; and that it was wrong to suggest the decision was otherwise irrational or conspicuously unfair.

Mr O’Brien, 57, described the ruling as a “blow”, saying he had hoped to have a hearing in front of judges.

“Unfortunately that’s not the case, and at the moment we cannot take it further because if we do they’ll charge us for all the costs,” he said, estimating that could cost “over £100,000”.

He added that he was “very angry” when he heard the news.

‘Unfair’

Andrew Taylor, a Cardiff-based barrister, described the ruling as “unfair”, comparing the case to the fight for justice by former postmasters caught up in the much-publicised Horizon scandal.

He said creating “as much publicity as possible”, like those involved in the Horizon scandal, could be an effective next step for Mr O’Brien.

“He’s been a tireless campaigner since his release, and I don’t think that this is necessarily the end of the matter.

“If you have been convicted of a murder that you didn’t commit, nobody recovers,” he said, adding that the decision was “another kick in the teeth” for Mr O’Brien.

Mr O’Brien said his options now were to try to get the law changed or take his campaign “onto the streets”, adding that he would be lobbying MPs.

He also said his fight for justice had impacted his health, adding that he had post-traumatic stress disorder (PTSD), comparing it to soldiers who had served in Iraq.

“That gives you an idea of the damage they’ve done to me and many other victims of miscarriages of justices,” he added.

More than 58,000 people have signed a petition on ChangeUK backing the men’s case. If they get 100,000 signatures it could be debated in the House of Commons,

Those wishing to sign it can do so by following this link: https://www.change.org/p/demand-reimbursement-for-wrongfully-convicted-charged-for-there-food-and-water