UK Labour Ministers say miscarriage of justice victim must pay ‘bed and board’ for the years he spent in prison

Martin Shipton

A Welshman who spent 11 years in jail for a murder he didn’t commit says he is “shocked and appalled” that UK Labour Ministers have decided that he and other miscarriage of justice victims 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.

Unfair

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. Mr Sunak’s press secretary told journalists last year: “In principle, for someone who has been wrongfully convicted, it doesn’t seem fair that they would have to repay or reimburse costs.”

Former Tory Justice Secretary Robert Buckland described Mr Malkinson’s case as “egregious” and suggested he should get special consideration.

“What happened to Mr Malkinson is a dreadful set of circumstances and it doesn’t sound right that he’d have to pay for bed and boarding costs,” he said, adding: “I trust the Justice Secretary [Alex Chalk] will assess the whole system, before making reform on a case-by-case basis.”

Hopeful

Mr O’Brien told Nation.Cymru last year: “My solicitors Hickman and Rose are representing me again and are waiting to see what happens in light of the Andrew Malkinson case.

“I’m hopeful that I’ll get compensation for the bed and board payment that was taken off me. It wouldn’t be fair to compensate some miscarriage of justice victims and not others. If the government did that, it would be discrimination and could be challenged in court.”

Now, however, recently appointed Labour Ministers including Justice Secretary Shabana Mahmood have decided to save money by not reimbursing the likes of Mr O’Brien for “bed and board” payments deducted from their compensation years ago.

In a letter to Hickman and Rose, an official of the Ministry of Justice stated: “Having carefully considered your request on the issue of saved living expense deductions, Ministers have decided not to apply the current policy retrospectively.

“All deductions of saved living expenses from previous awards of compensation determined by the Independent Assessor under the Miscarriages of Justice Application Scheme were made lawfully, as was confirmed by the House of Lords decision, R (O’Brien and others) v. Independent Assessor in 2007.

“Ministers recognise that a decision was made by the previous Lord Chancellor so that, as a matter of policy, financial awards that are made after August 6 2023 should not take account of saved living expenses. Ministers also understand that the previous Independent Assessor did not make any deductions for saved living expenses, meaning that, in practice, assessments for the last 10 years have not taken these into account.

“However, awards prior to the date of the recent policy change, (including historic applications where saved living expenses were deducted) were lawfully calculated and agreed and accepted in full and final settlement with claimants.

“Given the importance of certainty and ensuring the finality of concluded settlements and the significant administrative and other financial costs of reimbursing historic saved living expenses, Ministers have decided not to depart from the established principles of public policy under which policy changes apply prospectively only.

“While I recognise that those you represent will be disappointed with this decision, I trust this makes clear our position on saved living expenses.”

Mr O’Brien told us: “I am shocked and appalled at this decision. Guilty criminals are not charged bed and board for being in prison, so why should people like me, who have been exonerated, be expected to pay?

“This is discriminatory and I am instructing my solicitors to pursue a legal challenge.”