Can someone in the UK confirm the accuracy of “this report”:http://www.sundayherald.com/40592? (Via “Jim Henley”:http://www.highclearing.com/archivesuo/week_2004_03_14.html#005165.)
WHAT do you give someone who’s been proved innocent after spending the best part of their life behind bars, wrongfully convicted of a crime they didn’t commit? An apology, maybe? Counselling? Champagne? Compensation? Well, if you’re David Blunkett, the Labour Home Secretary, the choice is simple: you give them a big, fat bill for the cost of board and lodgings for the time they spent freeloading at Her Majesty’s Pleasure in British prisons.
On Tuesday, Blunkett will fight in the Royal Courts of Justice in London for the right to charge victims of miscarriages of justice more than £3000 for every year they spent in jail while wrongly convicted … spokesmen in the Home Office say it’s a completely “reasonable course of action” as the innocent men and women would have spent the money anyway on food and lodgings if they weren’t in prison. The government deems the claw-back ‘Saved Living Expenses’.
Is this a step in the calculation of compensation money prior to paying it to the victims, or an attempt to grab some of that money back after the fact? (Is that distinction even relevant?) The _sang froid_ of the British Legal Establishment never ceases to amaze. Maybe they could take it out of “Lord Denning’s”:http://www.people.fas.harvard.edu/~mponeill/law/utilitarianism.html estate. He “said”:http://www.highclearing.com/archivesuo/week_2004_03_14.html#005165 he wanted to be remembered in good works.
{ 19 comments }
Matt Weiner 03.17.04 at 6:35 am
That is awful but I believe that in some ways the US is even worse–it looks as though the UK actually compensates the wrongly imprisoned, but in the US:
“Under federal law, someone falsely detained is entitled to only $5,000, regardless of how long the imprisonment. In most states, the only way for the exonerated to be compensated is through civil suits filed against local police departments and the district attorney’s office. Yet civil litigation places the burden of proof solely on the exonerated, who need undeniable proof of a police frame-up or malicious prosecution by the DA’s office.” Here’s more; as you’d expect, it varies from state to state.
So it would seem that, even with the L3000 taken out, prisoners in the UK might get more compensation than those in the US who can’t win a suit if they don’t live in a state with a decent law. I’m not sure how the numbers work out.
chris 03.17.04 at 7:52 am
For the record this looks about right, judging from the BBC report last night. The claw back appears to be deducted from the compensation sum at the time of calculation.
The BBC interviewed Paddy Hill, an Irishman who was wrongly convicted on terrorist charges and served 16 1/2 years. His compensation has been reduced by £52,000 for “board and lodging”, but he has stopped fighting the case because some of his co-defendants are now so old after a series of delays in making any payment that it wouldn’t be reasonable to delay their payments any longer.
Unsurprisingly, he is a bitter man. As he points out, had he been guilty, he would have been housed in prison for free. The government refused to comment.
Further comment seems superfluous. Anyway, Matt’s picture of the situation in the States leaves me speechless.
Simon 03.17.04 at 7:57 am
It would be interesting to see if, following this principle, people convicted of kidnapping will be able to sue those they kidnapped for room and board. After all, they would have spent the money on food and lodging if they hadn’t been kidnapped.
Come to think of it, I think I’ll sue my university for all the money I could have earned if I hadn’t come here. Now does just one possible world count, or can I sum up a bunch of them?
Chris Bertram 03.17.04 at 8:22 am
I hate to say anything that might be construed as defending Blunkett, but the picture isn’t very clear from the two articles I’ve managed to find. Presumably, when assessing the amount of compensation due, the independent assessor takes account of things like income foregone whilst in prison. Obviously, the right figure to look at there has to be net of taxes and I guess the HO are arguing that there should be some further deduction to take some account of expenses that anyone would have had over the period concerned. So my guess is that this is an argument about how one element in the total compensation formula should be calculated. If so, then to represent it as having people “facing a bill” for £N000 is somewhat misleading (though if I were in their position I might do the same).
Having said that I hope they (people like the Birmingham 6) get as much as possible, since no amount of money would compensate for what they endured. But that doesn’t mean that Blunkett and co are necessarily applying the existing rules for determining compensation otherwise than they should.
John Quiggin 03.17.04 at 8:23 am
As an aside, when I was an undergraduate (long, long ago), Denning’s was a name to conjure with among my law student friends, on the basis of his fondness for judge-made law.
I trace my distrust of judicial activism (now amply vindicated by the Rehnquist Court in the US) to my early exposure to Denning.
Backword Dave 03.17.04 at 9:21 am
Oh rats, I was going to post on this but my two points (that the amount of compensation determined by the courts using whatever calculus they do was intended to be the amount received, and the kidnap analogy) have been pre-empted. Ruined what may have been a good post.
I may have to stop reading Crooked Timber.
BTW, three grand a year is nothing like the cost of keeping a prison inmate, as any Mail reader no.
Chris Lightfoot 03.17.04 at 9:34 am
Had the victims of these miscarriages of justice not been imprisoned, they might have bought houses and benefitted financially from house price inflation. Possibly the compensation they are due accounts for this; if not, the idea of charging for board and lodging is a bit silly, since these people have certainly been prevented from participating in the property market and might well have made a profit from doing so….
Chris Bertram 03.17.04 at 10:05 am
Some googling around revealed some interesting pages:
“On this page”:http://www.lawcampus.butterworths.com/dataitem.asp?ID=25483&tid=7 , solicitors for the Hickeys (another case) are arguing that their clients shouldn’t have “living expenses” deducted because the assessor made _no such deduction_ for the Birmingham 6. Though the page also quotes some lines of statute which suggest that deducting such expenses is required under Administration of Justice Act 1982.
And “here there is a page”:http://ourworld.compuserve.com/homepages/rapporteur/compensate.html outlining some of the general issues surrounding compensation. Some of it is pretty shocking: you get less if you’ve been in prison before, you get less for each additional year you spend in prison etc etc.
Mat 03.17.04 at 10:10 am
Pictured next to the fact that in her Maj’s country, companies can default on pensions, this paints the picture of a state gone insane. And all this by a Labour government.
Andrew Boucher 03.17.04 at 11:44 am
What do other countries (other than U.K. and U.S.) do to compensate victims of a miscarriage of justice ? Honest question, just interested…
bryan 03.17.04 at 12:40 pm
I rather doubt they would have spent those years paying for prison quality food. If they took 3,000 £ from me I’d want 10,000 for the crap I had to eat.
just as if they wanted 5,000 for the free gym membership I’d want 15,000 cause there weren’t any martial arts courses, and roughhousing was a disciplinary action.
Matt Weiner 03.17.04 at 3:18 pm
If you really want to be left speechless, head to the first Google hit for “wrongly+imprisoned+compensation.” The author (who seems to be more or less a random person) says, when an innocent person is imprisoned without prosecutorial misconduct, “A terrible thing has happened to an innocent person, and compassion says that he should be compensated… somehow. But should the State compensate somebody for a tragic circumstance in which nobody’s actually to blame?”
Myself, I think this is a case for strict liability.
I don’t know what the situation is like in other countries–obviously this is a discussion that only takes place in democracies–I am comparing the reality to what I think is ideal.
Ophelia Benson 03.17.04 at 3:55 pm
Hey, that suing the universities is a good idea. And we should all sue our parents for not selling us into slavery (unless they did, of course) and investing the proceeds in a nice bond or two that might be worth something by now (or not, as the case may be). We should sue tv companies for all the time we spend watching when we could be out making money. We should sue mattress companies for all the time we spend asleep when we could be out making a profit. We should
Keith M Ellis 03.17.04 at 4:06 pm
Perhaps it’s my debased American sense of justice, but it seems to me that a tort solution to the problem—which is the case in the US—is probably, on average, more just and equitable than the relatively arbitrary, automatic compensation exemplified above.
For example, I know that you guys across the pond are familiar with the Tulia, TX travesty of justice…there was a BBC show on it. You might not have seen that all of them are released now, and that another of the civil suits on their behalf has resolved (in this case between they and the city of Amarillo) with a $5 million settlement to be distributed among the 45 people (a 46th has died). I think the average length of incarceration was something close to 2 years; so that works out to be about 55K a year for each person. And, again, this is not the only civil suit.
Now, I suppose that what we’re talking about above are not like the Tulia case, but more like “honest mistakes” in which a jury would be unlikely (but who knows?) to penalize the authorities. And maybe that’s different. Maybe there should be, as in the UK, a minimum compensation for anyone effectively found to have been wrongly imprisoned. But I’d be really wary of such a mechanism canceling someone’s right to sue for equitable compensation for their false imprisonment.
Sebastian Holsclaw 03.17.04 at 6:19 pm
Finally a topic I can agree with you all on. The state, even if it did nothing improper at the time of conviction, should still compensate innocent people whom it imprisons. The state took away their lives, it should feel obligated to give compensation for being wrong about it.
A tort solution might be workable for true misconduct, but I’m not convinced it would be workable for many other cases where the prosecution didn’t really do anything wrong.
DJW 03.17.04 at 6:58 pm
I’ve never given this issue much thought before, but I’ll throw this out–since there seems to be general agreement that compensation, either through torts or policies–is good and just. But how much? Based on what principle? Should it be more for victims of gross misconduct and not simple error? Should it be tied to reasonable estimates of lost wages, or egalitarian? Should there be pain and suffering/mental anguish? Where should the money come from–should the prosecutor’s offices have to foot some of the bill, at least in cases of misconduct, as a deterrant?
Seems like a wealth of issues for normative/legal theorists to sink their teeth into.
bill carone 03.17.04 at 9:55 pm
“Should it be more for victims of gross misconduct and not simple error?”
Simple error would be handled like a car accident, through a civil lawsuit. Gross misconduct would be a criminal matter as well (as would intentional false prosecution).
So giving someone the death penalty acidentally would be the same as running someone over in your car accidentally. Intentional or gross misconduct would be the same as intentionally running someone over in your car, or doing so while drunk.
“But how much? Based on what principle? … Should it be tied to reasonable estimates of lost wages, or egalitarian? Should there be pain and suffering/mental anguish?”
Seems like a simple tort idea is a good place to start: pay them enough to make them indifferent between being imprisoned and not. In other words, make them whole.
Difficult to administer, but not that difficult; there would be standards created, and evidentiary proceedings if people thought they were significantly different than the standard case.
It might cost quite a bit, though. The system would have to set its error rate accordingly, especially for the harsher punishments.
“Where should the money come from—should the prosecutor’s offices have to foot some of the bill, at least in cases of misconduct, as a deterrant?”
Well, in a public system, the public would pay most of the time; then public servants could be fired for screwing up so badly. In some cases, we might be able to pin the mistake on a single person or group, and in that case we could sue them instead (or as well).
In a private system … oh wait, this is CT …
“you give them a big, fat bill for the cost of board and lodgings for the time they spent freeloading at Her Majesty’s Pleasure in British prisons.”
You should pay even more than that; after all, if the government runs your entire life for you, you’re much better off than if you were allowed to make your own decisions :-).
dave heasman 03.18.04 at 10:25 am
“I rather doubt they would have spent those years paying for prison quality food.”
Nor for prison-quality torture. This is the Birmingham 6, right? Whose photos at their bail hearings showed black eyes & bruises & noone gave a toss? Whose prison-quality food was pissed in for years.
The papers are full of the “survey” that 1976 was the best year ever in England. Not for the dozens stitched up by crooked police and crooked judiciary it wasn’t.
Tim Worstall 03.21.04 at 6:14 pm
One thing that the Sunday Herlad, then Perry and everyone else who commented seem to have left out is that Blunkett is not trying to impose new law. He’s actually trying to uphold thecurrent law : not what we normally expect of him.
Compensation became a statutory ( rather than ex gratia ) payment in the 1988 Criminal Justice Act. Essentially, the amoutn should be calculated in the same manner as civil damages.
Fine and Dandy.
However, in the 1982 Administration of Justice Act we have :
““in an action ….for personal injuries any saving to the injured person which is attributable to his maintenance wholly or partly at public expense in a hospital, nursing home or other institution shall be set off against any income lost by him as a result of his injuriesâ€. ”
So it is not a choice by anyone. The appraiser is simply applying the law.
It’s also asinine, but then who ever said the law had to make sense ?
Of much greater import to my mind are the delays in actually paying the compensation. One easy way to make this faster : interest is due on the compensation from the date of the quashing of the conviction, rather than the current system of interest being due only form the date of agreement : which means that the interim payments to the victims garner interest which has tobe paid back.
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