Suspected Persons (Ex Gratia Payments) (Hansard, 29 July 1976)

§ Mr. Roy Jenkins

When a decision is taken to make an ex gratia payment in these circumstances the practice is to submit the facts to an independent assessor for advice as to the amount to be paid. I have reviewed the procedure followed in the few such cases that arise —there were six in the financial year 1974–75 and four in 1975–76—and have decided that in future the claimant or his solicitor should be informed of the factors which will be taken into account by the assessor, that he should have the opportunity of making personal representations to the assessor and that he should subsequently be given an explanation in broad terms of the basis on which the assessment has been made. The purpose of these changes is to make as much information as possible available to the claimant, to give him the maximum opportunity of providing relevant information for the assessor and to make it clear that the general principles governing the assessment are analogous to those governing the assessment of damages for civil wrongs. The new procedure is explained in the note below, copies of which will be sent to successful claimants.

EX GRATIA PAYMENTS TO PERSONS WRONGLY CONVICTED OR CHARGED: PROCEDURE FOR ASSESSING THE AMOUNT OF THE PAYMENT A decision to make an ex gratia payment from public funds does not imply any admission of legal liability; it is not, indeed, 329W based on considerations of liability for which there are appropriate remedies at civil law. The payment is offered in recognition of the hardship caused by a wrongful conviction or charge and notwithstanding that the circumstances may give no grounds for a claim for civil damages. 2. Subject to Treasury approval, the amount of the payment to be made is at the discretion of the Home Secretary, but it is his practice before deciding this to seek the advice of an independent assessor experienced in the assessment of damages. An interim payment may be made in the meantime. 3. The independent assessment is made on the basis of written submissions setting out the relevant facts. When the claimant or his solicitor is first informed that an ex gratia payment will be offered in due course, he is invited to submit any information or representations which he would like the assessor to take into account in advising on the amount to be paid. Meanwhile, a memorandum is prepared by the Home Office. This will include a full statement of the facts of the case, and any available information on the claimant's circumstances and antecedents, and may call attention to any special features in the case which might be considered relevant to the amount to be paid; any comments or representations received from, or on behalf of, the claimant will be incorporated in, or annexed to, this memorandum. A copy of the completed memorandum will then be sent to the claimant or his solicitor for any further comments he may wish to make. These will be submitted, with the memorandum, for the opinion of the assessor. The assessor may wish to interview the claimant or his solicitor to assist him in preparing his assessment and will be prepared to interview them if they wish. As stated in paragraph 2 above, the final decision as to the amount to be paid is a matter entirely for the Home Secretary. 4. In making his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs. The assessment will take account of both pecuniary and non-pecuniary loss arising from the conviction and/or loss of liberty, and any or all the following factors may thus be relevant according to the circumstances:

Pecuniary Loss Loss of earnings as a result of the charge or conviction. Loss of future earning capaicty. Legal costs incurred. Additional expense incurred in consequence of detention, including expenses incurred by the family.

Non-Pecuniary loss Damage to character or reputation. Hardship, including mental suffering, injury to feelings and inconvenience. When making his assessment, the assessor will take into account any expenses, legal or otherwise, incurred by the claimant in establishing his innocence or pursuing the claim for compensation. In submitting his observations a solicitor should state, as well as any other 330W expenses incurred by the claimant, what his own costs are, to enable them to be included in the assessment. 5. In considering the circumstances leading to the wrongful conviction or charge the assessor will also have regard, where appropriate, to the extent to which the situation might be attributable to any action, or failure to act, by the police or other public authority, or might have been contributed to by the accused person's own conduct. The amount offered will accordingly take account of this factor, but will not include any element analogous to exemplary or punitive damages. 6. Since the payment to be offered is entirelyex gratia, and at his discretion, the Home Secretary is not bound to accept the assessor's recommendation, but it is normal for him to do so.. The claimant is equally not bound to accept the offer finally made; it is open to him instead to pursue the matter by way of a legal claim for damages, if he considers he has grounds for doing so. But he may not do both. While the offer is made without any admission of liability, payment is subject to the claimant's signing a form of waiver undertaking not to make any other claim whatsoever arising out of the circumstance of his prosecution or conviction, or his detention in either or both of these connections.