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20 April 2007 / Peter Ferguson KC
Issue: 7263 / Categories: Features , Public , Human rights
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Lost years

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Is the compensation scheme for unlawful imprisonment unjust? Peter Ferguson reports

The decision of the House of Lords in R (O’Brien) v Independent Assessor [2007] UKHL 10, [2007] All ER (D) 239 (Mar) will be of importance not only to people who have an existing claim for compensation under the Criminal Justice Act 1988 (CJA 1988), s 133 but also for those whose claims had been accepted, by 19 April 2006, for an ex gratia payment. It is open to speculation whether the majority’s conclusions may have been influenced by the recent government policy change.

In a ministerial statement in April 2006 the Home Secretary announced, with immediate effect, the abolition of the discretionary scheme and the independent assessor’s new approach of discounting under CJA 1988, s 133(4A) at a higher rate any non-pecuniary awards to reflect the claimant’s previous record and conduct leading to his wrongful imprisonment. The government also proposed legislating to allow reduction in the total award—in exceptional cases, even to nil—to reflect prior record and bad conduct; to cap individual

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