Saved Living Cost No Longer Deducted From Compensation for Wrongly Convicted

Andrew Malkinson raises a fist outside the Royal Courts of Justice in London on July 26, 2023. (Jordan Pettitt/PA via AP)

Saved living cost will no longer be deducted from compensation for those who are wrongly imprisoned, Justice Secretary Alex Chalk said on Sunday.

The change came after the fairness of the rule came into question last week when Andrew Malkinson, who spent 17 years in prison for a rape he didn’t commit, told the BBC that he would have to pay the prison for “board and lodging” cost from his compensation payment.

Announcing the rule change, which took effect immediately, Mr. Chalk said the “common sense change will ensure victims do not face paying twice for crimes they did not commit.”

“Fairness is a core pillar of our justice system and it is not right that victims of devastating miscarriages of justice can have deductions made for saved living expenses,” he said.

Mr. Malkinson, who was released from prison last week, welcomed the reform, telling the BBC that it’s “a step in the right direction.”

“The guilty don’t pay. Why should the innocent? That’s ridiculous,” he said, implying that the deduction effectively charges him for living in prison.

“It comes across as sour grape seeds. It’s like, okay you’ve overturned your conviction, now we’re going to take something from you,” he added.

Under the miscarriage of justice compensation scheme, those who are wrongly imprisoned for more than 10 years can get up to £1 million in compensation, while the compensation for under 10 years of wrongful imprisonment is half that.

The payment covers pecuniary losses, such as legal costs, families’ visiting expenses, and loss of past or future earning or pension rights; and non-pecuniary losses, such as the victims’ inconvenience, loss of freedom, and health and reputational damages.

Speaking to Sky News, the 57-year-old said the compensation “will be very helpful.”

“If I live long enough to receive it, it’s gonna make sure I live the rest of my life in relative comfort and not have to worry about bills and stuff like that ever again, because I think that’s only the least they could do for me,” he said.

Asked if £1 million was enough, Mr. Malkinson said the cap “seems very unfair” since he was jailed for almost 20 years.

“It’s pretty lamentable really,” he said. “It sounds perhaps like, to the average layperson, like a lot of money. But that represents nearly two decades of living hell and lost opportunities and lost love and everything else that makes life precious. It’s all just a big void of unhappiness, deep, profound unhappiness.”

Mr. Malkinson said he doesn’t believe “any amount will be enough” but it “should be significantly higher than it is.”

Mr. Malkinson was jailed for life with a minimum term of seven years but spent an extra decade in prison because he maintained his innocence.

At the time of Mr. Malkinson’s trial, there was no DNA evidence and the prosecution case against him was based entirely on identification evidence, which turned out to be inaccurate.

Two witnesses who identified Mr. Malkinson had convictions for dishonesty offences and one was a heroin addict.

But a DNA sample had been taken and was eventually tested in October 2022 and linked to another man, who has since been arrested.

Saved Living Cost

Under previous guidance for miscarriage of justice compensation, a deduction can be made from the “loss of past earnings” part of the compensation because the victims didn’t have to pay for food, cloths, and accommodation while being imprisoned.

The rule dates back to a precedent set in 2007 by the House of Lords, which was then the highest court in the UK.

Four of the five law lords agreed with a government-appointed assessor who deducted saved living expenses when calculating the compensation payments for three wrongly convicted individuals—Vincent Hickey, Michael Hickey, and Michael O'Brien—to avoid over-compensation.

Mr. Vincent Hickey and Mr. Michael Hickey were jailed for life in 1979 for the murder of 13-year-old paperboy Carl Bridgewater. Their convictions were overturned 18 year later after the Crown Prosecution Service accepted their trial was “fundamentally flawed.”

Mr. O'Brien spent 11 years in prison for the murder of newsagent Phillip Saunders before his conviction was quashed in 2000.

Appointed by the home secretary to calculate their compensation, Lord Daniel Brennan KC awarded £990,000 to Mr. Michael Hickey, £506,220 to Mr. Vincent Hickey, and £647,900 to Mr. O'Brien.

A court document shows Mr. O'Brien’s compensation included a £37,158 deduction in saved living expenses. And the Hickey cousins’ payment also had a quarter of their “loss of earnings” compensation deducted for saved living expenses.

According to The Telegraph, the Hickeys’ lawyers said the deduction was around £60,000 for each of the cousin.

Explaining the decision, Mr. Brennan wrote in the assessments that “Common Law principles require that there should be no double compensation.”

“Because he was imprisoned, the applicant did not incur such living expenses. ... the court felt that past and future benefits must be deducted so as to avoid double compensation,” he wrote.

Mr. O‘Brien’ and the Hickeys appealed the deductions. The High Court ruled in their favour in 2003, but the Court of Appeal, the House of Lords (pdf), and the European Court of Human Rights subsequently agreed with Mr. Brennan.

One law lord disagreed with the deductions, saying the “supposed saving” was “inextricably linked” to wrongful imprisonment, “ just as they would be in the case of a prolonged kidnapping.”

Lord Rodger of Earlsferry also said it was “not hard to see why ... the appellants would feel that in the end they were, in effect, paying for their keep throughout all those long years when they were wrongly deprived of their liberty and shut up in prison.”

Chris Summers contributed to this report.