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This won’t make any difference at all

Wrongly convicted prisoners will no longer have to pay for their bed and board, in a victory for an innocent man who served 17 years for a rape he did not commit.

Andrew Malkinson had his conviction overturned by the Court of Appeal last month. But once he was declared a free man, he was told that he would need to repay costs incurred during his prison stay.

Now Alex Chalk, the Justice Secretary, is to scrap the requirement for prisoners who have been victims of miscarriages of justice to pay for “saved living expenses” out of any compensation they receive from the state.

I used to get outraged by it too.

Compensation for a tort is always calculated to put you back in the position – as far as possible, of course – of where you would have been without the wrong done to you. This does have the weird effect that someone higher paid before being jugged gets more compo than someone lower paid.

No one “had to pay” their bed and board. Their compo was worked out, then from that was deducted the fact that they had not had to pay bed and board for x years. So that, in the end, their compo put them in the position they would have been without the unjust conviction.#

It wasn’t paying the prison service for a sandwich every night. It was that the amount of money you have now, free and clear, reflects that you didn’t pay for a sandwich every night while jugged.

OK, bit of a kludge but it maintained that common law idea about compo for a tort. Now Ministers have been stampeded into changing this.Might have been better to stick with hte old idea so that compo is the same for every tort. But, you know, politics and the public screaming about things.

It’ll make no damn difference at all to the amount of compo paid of course. Because the calculation on how much it is will simply absorb this new info and change. There will be no line charge for bed and board – but the numbers will still be in there.

Now, if you really want to get outraged, some American counties (it is by county, and so is the county jail for, usually, sentences under 6 months, not state prison for those longer) really do charge bed and board. Get rightrously jugged, serve your 90 days in the county jail (I feel a blues song coming on) and they issue a bill for $5,520 ($60 x 90) on your exit. Not from your compo, you were guilty, served your time and are now being released. And they expect that bill to be paid too. Will use credit agencies to chase you, try to bankrupt you over non-payment etc.

Now that’s just plain evil.

22 thoughts on “This won’t make any difference at all”

  1. “It wasn’t paying the prison service for a sandwich every night. It was that the amount of money you have now, free and clear, reflects that you didn’t pay for a sandwich every night while jugged.”

    Thats the f*cking same thing! So now they won’t be able to take into account the fact that he didn’t have to pay for a sandwich when calculating the compensation (which incidentally can never compensate for 17 years of wrongful incarceration, so he’ll never be back in the position he was before it happened, so to pretend it will is an insult) so he’ll get more compo. 17 years of lost earnings, and no reduction for sandwiches not paid for.

    Personally I’d take the assets off all the people responsible and give them to him, and maybe put them in jail for 17 years as well, just to even things up a bit, and encourager the others.

  2. It is a matter of approach.
    I think that compensation should be seen as the state effectively paying a punishment fine to the prisoner, I also think that there should be a sliding scale based on the length of incarceration, but independent of earnings potential. As you say that is probably politically implausible.
    Jim’s suggestion has a lot to commend it.

  3. Our prisons are full of innocent men. They are also full of liars. However, it does seem unjust – and a perversion of the truth – to insist that a prisoner should admit his guilt or face an extended term, without due process. The truly innocent should be released on completion of sentence and the liars are going to lie anyway.

  4. @JuliaM

    Surely the ‘professionals’ on both sides of the prosecution and the presiding judge

    Might make them more careful…

  5. “Surely the ‘professionals’ on both sides of the prosecution and the presiding judge”

    And the police who destroyed all the evidence.

  6. Subsequent comments have it, Julia.

    The jury can only rely on what it is told. If the police lie or destroy evidence, if the defendant doesn’t have a sufficuent alibi and so on. The state apparatus is always to blame in cases such as this.

    It doesn’t always work. When I did jury service, the prosecution accidentally proved one of defendants’ innocence.

  7. I have some sympathy for the counties. You did the crime, so presumably the people of the county suffered the effects. Why should they have to stumping up your hotel bill?
    Maybe it’d deter some of those people who regard a spell inside as a restful break & a welcome increase to their street cred. And yes, there are a lot of them.

  8. Treating unjustified imprisonment as just ‘a tort’ seems unduly harsh. Compo ought to reflect much more than that!

  9. Compensation for a tort . . .

    That’s where it goes wrong. The state, having punished someone under criminal law, is somehow permitted to turn the issue into a civil matter when it has been found to be negligent or malicious. And as we see the state settles things in its own interests, right up to the point of being an evil, piss-taking cunt.

    The state power to convict and incarcerate citizens is literally in a different league of seriousness to tort law, and compensation due for the state misusing that power should reflect that seriousness. The state should never get off lightly.

  10. The state power to convict and incarcerate citizens is literally in a different league of seriousness to tort law, and compensation due for the state misusing that power should reflect that seriousness. The state should never get off lightly.

    Problem is, when it comes to “never getting off lightly”, the state becomes us taxpayers. Again.

    I’m with Jim above. In fact I think I wrote something very similar recently on another thread about this case. Those individuals responsible should pay the compensation and do equivalent jail time.

  11. And the police who destroyed all the evidence.

    I thought the claim here was that the prosecution had evidence that would have cleared him and refused to release that evidence to the defence?

    The whole truth of all of this has still to come to light.

  12. Those individuals responsible should pay the compensation and do equivalent jail time.

    That’s only possible when it’s a clear case of negligence or malice. What happens when everyone acts correctly, the system does what it should as best it can, and still a person is wrongfully convicted. And you’re going to get that a lot, because there is no recording of life with a rewind button to show “what really happened”. Who is then responsible? All the people involved are working for the state so the state should be responsible.

    Problem is, when it comes to “never getting off lightly”, the state becomes us taxpayers. Again.

    Well, ultimately, that is the case. In a democracy we are all the state and all responsible for monitoring what’s going on in our name. We’ve decided (culturally and historically) that the state will have a role in convicting and incarcerating our fellow citizens. It’s the general fund that pays for that activity so it should be the general fund that compensates.

    If you wish to remove all immunity from individuals acting on your behalf in the criminal justice system, good luck getting any convictions.

  13. “I thought the claim here was that the prosecution had evidence that would have cleared him and refused to release that evidence to the defence?”

    All the evidence taken at the time (clothing worn by the victim etc) was destroyed by GMP after the trial, despite a court order stating they should be preserved. It was only because a small fragment of clothing did not get destroyed and was discovered in an archive by the defence 2 years ago that he was freed, as another man’s DNA was found on it. So whoever in GMP made the decision to destroy the evidence in contravention of a court order should definitely be doing 17 years.

    There was other evidence that GMP had that was not disclosed at the trial that could have swayed the jury – a picture showing the broken nail of the victim who stated she had scratched her attacker hard, enough to draw blood. Malkinson had no scratch to his face when arrested only 2 weeks after the attack, a discrepancy that was glossed over by the judge in his summing up as ‘she might have been mistaken’ about the scratch. If there was photographic evidence she was not mistaken, her nail had indeed been broken, that would have been very strong evidence he was not the assailant. Whoever made that decision to omit evidence, and the judge for his summing up should both be doing 17 years.

    https://www.telegraph.co.uk/news/2023/07/28/andrew-malkinson-freed-after-17-years-in-prison-interview/

  14. Bloke in North Dorset

    I thought there was 2 parts to his payment:

    The tort that Tim refers to where he is supposedly made whole and then compensation for the wrongful imprisonment?

    And I’m in the punish anyone who’s been negligent or worse camp. The State has all the resources it needs and if it can’t get a conviction without putting its thumb on scales or one of its functionaries fucking up people should walk free.

  15. @PJF
    The system is designed to protect the people operating the system. To the extent you’d be damned lucky to be able to prove any individual culpable for anything. Look at Jim’s destruction of evidence in contravention to an order not to do so. The poor geezer physically did so will have been no doubt just following the paperwork he’s been given. Or paperwork he hadn’t been given The person who raised/ didn’t raise the paperwork? “An understandable error due to confusion in the department. System error. Lessons have been learned. Yadda yadda yadda.”
    Wait for the outcome of the PO inquiry with baited breath. Not.

  16. Another interesting one I came across was that in the 60’s/70’s children given up for adoption and in a Children’s Society home the birth mother was required to pay an amount from any wages for their care and upkeep until they were adopted. Seems like if they got to 5 without being adopted then they went into the general care system. The establishments were called homes for waifs and strays, I’m pretty sure there would be a major meltdown if you used that terminology today

  17. While I can see the reasoning behind deducting the value of expenses which were not incurred, it reminds me of a joke about a visitor to a museum who asks a security guard how old the dinosaur on display is. He says it’s 70,000,003 years old. Because when he started work there three years ago he was told it was 70,000,000 years old.

    The million pounds for ten years (which I would say is far too small a payment anyway), is clearly just a vague estimate. It makes no sense to start with that and then try to add or subtract some carefully calculated amounts.

  18. The “put the person in the place they would be without the imprisonment” could unfortunately result in:
    You would have worked for 17 years, had X amount of income, in that time you’d have got a mortgage of Y, now be in negative equity of Z, so your position without imprisonment is £500,000 in debt. We’ll accept a cheque.

  19. Alternatively, on the third Friday of your imprisonment you would have popped into Tesco and bought a Euromillions lottery ticket on a whim. Here’s a cheque for £172,000,000.

    Which shows the absurdity of a mechanical calculation to figure out where someone might be having enjoyed the freedom to engage in life.

  20. It’s completely hopeless trying to assess how a different reality would end up. For example, suppose a couple, Alice and Bob, are driving to the airport to catch a flight and another vehicle driven by Carol, with 100% fault, crashes into them, killing Bob who was the main earner of the couple. Alice might sue Carol based on loss of earnings etc. But what if the flight they were trying to catch crashes killing all on board? Does that mean Carol can say that no payment is due as the position Alice and Bob would have been in without the car crash would be that neither could have earned anything due to them being dead? It seems the obvious answer is that the liability applies to the point at the instant after the event which causes liability and no subsequent event can change it. In the case of false imprisonment, that would mean that the liability arises at the moment the imprisonment starts and the liability is calculated based on that point in time and not based on subsequent events. So, for example, if a prisoner discovers that they have a magnificant voice and would have earned a vast fortune as a famous singer, that does not increase the payment they are due, but equally, if it is discovered that the prisoner has a critical illness that would inevitable been overlooked and killed them had they not been incarcerated, that does not reduce the payment.

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