FOURTH SECTION
DECISION	
AS TO THE ADMISSIBILITY OF
Application no. 39492/07
by Michael Joseph HICKEY and Vincent James HICKEY
against the United Kingdom
The European Court of Human Rights, sitting on 4 May 2010 as a Chamber composed of:
Giovanni Bonello, President,Nicolas Bratza,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Ledi Bianku,Mihai Poalelungi, judges,Registrar,
Having regard to the above application lodged on 30 August 2007,
Having deliberated, decides as follows:

THE FACTS
The applicants, Mr Michael Joseph Hickey and Vincent James Hickey, are British nationals who were born in 1961 and 1954 respectively and live in Birmingham. They were represented before the Court by Ms S. Labinjoh, a lawyer practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The two applicants, together with James Robinson, were convicted on 9 November 1979 of murdering Carl Bridgewater, a thirteen year-old newspaper boy, during the course of a burglary at Yew Tree Farm, in the West Midlands.
At the time of conviction, the first applicant was just under eighteen years old. He had accrued fifteen previous convictions, most of which were minor, between 1976 and 1978. He had not previously served a custodial sentence. For the Bridgewater murder, he was sentenced to detention at Her Majesty's Pleasure, along with eight years' detention for the robbery at Yew Tree Farm and two sentences of twelve years' detention, to be served concurrently, for two armed robberies, at Chapel Hill Farm and a Tesco supermarket, to which he had earlier pleaded guilty.
The second applicant, who was twenty-five years old at the time of conviction, was sentenced to life imprisonment for the Bridgewater murder, and given a concurrent sentence of ten years for the aggravated burglary at Yew Tree Farm. He was also given twelve months for an offence of deception. The second applicant also had a previous criminal record, with seventeen convictions, mostly minor, accrued between 1970 and 1978. He had served a short custodial sentence as a juvenile, and been given a suspended sentence of twelve months' imprisonment as an adult.
James Robinson, the man convicted alongside the two applicants, was forty-five years old at the time and had a more serious criminal record, having been convicted of various offences between 1954 and 1958 for which he received suspended sentences, and of various offences of dishonesty including burglary in 1966, for which he received a three-year prison sentence. James Robinson was sentenced to life imprisonment for the Bridgewater murder; ten years' imprisonment for the aggravated burglary at Yew Tree Farm; and fifteen years concurrently for each of the Chapel Hill Farm and Tesco armed robberies.
The applicants and James Robinson sought to challenge their conviction of the murder and aggravated burglary at Yew Tree Farm, of which they maintained they were innocent. However, leave to appeal to the Court of Appeal was refused in December 1981 and, upon reference of their cases to the Court of Appeal by the Secretary of State, their appeals were dismissed in March 1989. The Secretary of State again referred their cases to the Court of Appeal and, on this occasion, serious irregularities in the conduct of the investigation and the trial emerged. The prosecution accepted that the convictions had been fundamentally flawed. All three were released on unconditional bail in February 1997 and their appeals were allowed, and their convictions quashed, on 30 July 1997. The Secretary of State decided that the applicants and James Robinson were entitled to compensation.
The assessment of compensation for James Robinson was conducted by Sir David Calcutt QC on 7 June 2000. The assessment was made on the basis that Mr Robinson had spent ten years wrongfully imprisoned, allowing for the time that he would have served in any event for the other robberies. The assessor made a deduction from the award of non-pecuniary losses to reflect Mr Robinson's previous criminality, but this deduction was “comparatively modest” - namely 10% - reflecting the fact that his previous offences had all been non-violent. The assessor awarded GBP 115,000 in basic damages and GBP 172,000 in aggravated damages. The aggravated damages were stated as being to take account of the conduct of the police in investigating and prosecuting the offences, which had involved forgery, deceit and violence, and the constant intimidation and violence to which Mr Robinson had been subjected in prison as a result of being labelled a “child killer”.
The assessment of compensation for the applicants was conducted by Lord Brennan QC on 15 June 2002. The assessor concluded that Michael Hickey had been wrongfully detained for twelve years and ten months, having regard to the time that he would have served in any event for the other robberies. With regard to the appropriate deduction to be made from the non-pecuniary losses to reflect previous criminality, the assessor noted that the applicant had been just under eighteen years of age at the time he was convicted, but that he had already accrued five convictions for offences of dishonesty, burglary and driving offences, for which he had variously received fines and supervision orders. He had also, more significantly, been convicted of two robberies with a firearm at the same time as his wrongful conviction. Finding that there was no way in which such serious convictions could be ignored, he made a deduction of 20% to reflect the first applicant's past criminality.
The assessor went on to find that conviction and imprisonment had had consequences of the gravest kind for Michael Hickey, not least because his imprisonment had resulted in serious psychiatric illness, which was likely to endure for the remainder of his life. He awarded the first applicant a total of GBP 250,000 for non-pecuniary loss, which was broken down into GBP 140,000 for all factors other than psychiatric illness; GBP 35,000 as a moderate uplift for aggravating factors of the case; and GBP 75,000 for psychiatric illness. The first applicant was also awarded GBP 770,000 in respect of pecuniary loss. This incorporated a figure to reflect his past loss of earnings, from which a deduction of 25% was made to reflect saved living expenses. The assessor noted that a deduction for saved living expenses had not been made from Mr Robinson's award; however, he considered that each case had to be decided on its own merits at the time of assessment. It was correct that living expenses should be deducted, since common law principles prohibited double compensation, and the award for loss of earnings should reflect the facts that living expenses would normally be paid for out of earnings, and that the first applicant had not incurred such expenses by reason of his imprisonment.
The assessor found that Vincent Hickey had been wrongfully detained for thirteen years and eight months, bearing in mind the time he would have served for the Chapel Hill robbery, to which he had pleaded not guilty but had later admitted, and which had been ordered to lie on his file. He was older than the first applicant at the time of his conviction and had a more significant offending history, of seven previous convictions for thirteen offences including dishonesty; burglary; assault; and driving whilst disqualified. For these offences he had variously received fines, supervision orders and a suspended prison sentence. The Chapel Hill robbery had therefore marked the culmination of significant criminal behaviour, and the assessor deducted 25% from his non-pecuniary award to reflect this.
The assessor found that the second applicant had had to endure harsh conditions and treatment, which had included sexual assault, in prison due to being perceived as a child murderer. As a result of such treatment, he had suffered depression and post-traumatic stress disorder. He had become addicted to heroin whilst in prison, an addiction which continued after his release until he underwent rehabilitation treatment. The assessor awarded the second applicant GBP 190,000 in respect of non-pecuniary loss, of which GBP 50,000 was for past and present psychiatric injury, and to which the 25% deduction for past criminality applied, making a total for non-pecuniary loss of GBP 144, 936. The assessor did not specify whether any part of the award reflected aggravating factors. A total of GBP 361,284.20 was awarded for pecuniary loss, incorporating a deduction of 25% from the loss of earnings to reflect saved living expenses. The reasoning behind the deduction was identical to that in the first applicant's assessment.
In response to representations by the applicants' representatives, the assessor prepared an addendum to his assessments, dated 16 September 2002, in which he defended the approach taken, by reference to case-law. In particular, he stated that he did not find it necessary or practical to give a breakdown of the non-pecuniary losses; that the deductions made in respect of previous criminality were appropriate in the circumstances of the cases, that uniformity with previous assessments was not required; and that the deduction for living expenses reflected a set off against the lost earnings of expenses which had not been incurred by reason of being in prison, and that 25% was a relatively modest deduction to make on this basis.
The applicants sought judicial review of Lord Brennan's decisions and their applications were heard in the High Court in March 2003. Insofar as is relevant to the complaints pursued by the applicants before the Court, the High Court held that Lord Brennan had, by relying on common law principles derived from personal injury cases, which were not analogous to the cases in hand, misdirected himself in law in deducting a proportion from the award of pecuniary losses relating to loss of earnings for each applicant in order to reflect saved living expenses. The High Court also found that the deductions made by Lord Brennan to reflect each applicant's past criminality were unobjectionable in themselves. The only grievance that each applicant could have was in comparing the deduction applied to them with the smaller deduction applied by Sir David Calcutt QC to James Robinson. The assessor was not bound by a principle of consistency and could depart from the findings of his predecessor if he considered that he had good reason to do so. Since the applicants could not have a justified sense of grievance about their own awards, viewed alone, their challenge on this ground failed.
The applicants appealed against the High Court's failure to quash the assessment on the grounds of the inconsistent deduction for past criminality; the assessor appealed against the quashing of the part of his assessment which dealt with saved living expenses. The cross appeals were disposed of by the Court of Appeal on 29 July 2004. With regard to the assessor's appeal, Auld LJ, who gave the lead speech, held that Lord Brennan had correctly regarded the deduction he imposed, on its facts and in accordance with the law, as being necessary to avoid compensating the applicants for a loss which they had not sustained. The deduction had been taken from the pecuniary loss award for loss of earnings, and had had no impact on the non-pecuniary loss award, which took account of the applicants' suffering as a result of imprisonment. Longmore LJ concurred, adding that the cost of basic living expenses had not been set off because the applicants had received a benefit; rather it had been set off because the applicants had not incurred expenses that they would have incurred had they been at liberty and in gainful employment. Given that the overall assessment separated the awards for loss of liberty – which was addressed under non-pecuniary loss – and for loss of earnings – which was addressed under pecuniary loss – and that the former was entirely appropriate, it was inevitable that the latter should take account of saved living expenses. Gage LJ also concurred. Lord Brennan's appeal on this ground was therefore allowed.
As regards the alleged inconsistency involving the deductions made for past criminality, Auld LJ stated that judicial consistency was always desirable, but not always achievable where decisions were taken by different decision-makers. Lord Brennan had reached a reasonable figure for the deduction, and had given his reasons for departing from the approach of his predecessor. The situation was akin to differences in sentencing. There the test for overturning a sentence was whether the person felt a justifiedsense of grievance. Here, the applicants had been subjected to deductions which, viewed on their own and objectively, were reasonable. They did not therefore have a justified sense of grievance. Auld LJ and Gage LJ concurred. The applicant's appeal on this ground was therefore dismissed.
The applicants then appealed both issues to the House of Lords. Judgment was handed down on 14 March 2007, and the applicants' appeals on each ground were dismissed by a majority of 4:1.
Lord Bingham, who gave the lead speech for the majority, stated with regard to the first issue that:
“It is in my opinion inapt and understandably offensive to the appellants to regard or treat their imprisonment as a benefit conferred on them by the state.”
However, to award the full amount of lost earnings without making any deduction for living expenses would, in reality, leave the applicants better off than if they had actually earned the money. The deduction led to the applicants being put in the position that they would have been in had they not been imprisoned and therefore they were compensated for their actual loss. Lords Scott and Carswell agreed with Lord Bingham's analysis. Lord Brown also agreed, adding that the deduction was plainly a reflection of the basic expenses of living in freedom, rather than a credit impermissibly claimed by the State to repay a supposed benefit.
However, Lord Rodger disagreed on this ground of appeal, holding that it was both unattractive and an infringement of constitutional principle to regard the deduction of living expenses from the applicants' awards as being necessary to avoid double compensation. The Government was not permitted to charge prisoners for their board and lodging, as previous case-law dealing with prisoners' earnings in prison had established. The case-law in respect of personal injury, which had been relied on by both sides throughout the instant proceedings, if properly understood, held that the normal expenditure of a plaintiff on food and accommodation was of no concern to the defendant. Deductions were admittedly made in situations where it was necessary to avoid double compensation; that is, where an award for loss of earnings and an award for future care were both given. Since the applicants in this case had no claim for future care, no deduction was necessary to avoid double compensation. The cases regarding personal injury also differed from that of the applicants in an important way: whereas in personal injury claims the wrong had been done and the issue was how to treat their maintenance at public expense thereafter, the applicants in this case had been subjected to an ongoing wrong. They were being wronged whilst being maintained at public expense. Lord Rodger stated:
“Justice, reasonableness and public policy dictate that no allowance should be made for so-called savings which the applicants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated.”
In reality, it did not matter whether the cost of board and lodging was treated as a benefit that the applicants had received or as a deduction from their compensation for loss of earnings; the result was that they were penalised for the time spent in prison, which was the very thing that their awards were designed to compensate them for. Lord Rodger would therefore have upheld the applicants' appeal on this ground, while dismissing their appeal on the ground of the deduction for past criminality.
With regard to this second ground of appeal, Lord Bingham held that while it was generally desirable that decision makers, whether judicial or administrative, should act in a broadly consistent manner, the assessor who dealt with the applicants' claims for compensation had not been bound to follow the previous decision dealing with their co-accused if he considered it to be erroneous. The matter of the appropriate deduction to be made for past criminality was a highly judgmental matter, and the assessor's deductions, in themselves, were not impugned. The applicants' only basis for complaint was the lesser deduction applied to their co-accused and this was not sufficient to give rise to a justified sense of grievance.
Lords Brown and Rodger agreed with Lord Bingham on this ground of appeal; Lord Brown adding that, while at first blush the inconsistency between the deductions imposed by the different assessors appeared unfair to the applicants, in fact it had been done for good reason. Lord Brennan had either found his predecessor's deduction to be irrationally low, or the two assessors had taken a different approach to the overall calculation of non-pecuniary loss; either way, the applicants' appeal on this ground could not succeed. Lord Carswell also agreed that this ground of appeal should fail; however, he expressed some doubts as to the sense of deducting a proportion for past criminality from the total award for non-pecuniary loss. He considered that it would make more sense to take the claimants' criminal history into account when determining each of the various heads of loss than to apply a flat percentage deduction afterwards. However, the inconsistency in the deductions applied did not vitiate the assessor's conclusions; consistency was desirable but it had sometimes to yield to the larger imperative of delivering justice in the particular case.
Lord Scott, on the other hand, dissented on this ground. He found that the deductions for past criminality should not have been applied to the portion of non-pecuniary loss which related to the conduct of the authorities who prosecuted the crime. There was no reason that a hardened criminal would suffer less than a person of previously good character in being unfairly convicted of a crime that he did not commit. Nor should the deduction for past criminality be applied to a claimant who had never been imprisoned before. The suffering inherent in being incarcerated for the first time would be just as abject, whether or not the person had a previous criminal record. Lord Scott considered that the claimant's history should be taken into account when calculating the non-pecuniary harm done to them, and that no further deduction was therefore necessary. On the issue of the consistency of the applicants' awards with their co-accused, he found that compensating a person for wrongful conviction was designed to ameliorate an existing and justified sense of grievance; therefore, if the award of compensation was not perceived as fair, then the aim of addressing a grievance had not been properly met. The deduction applied to the applicants did not appear to be fair, given the significantly smaller deduction applied to Mr Robinson, and his significantly more serious criminal record. The applicants' appeal on this ground should therefore be upheld.
B.  Relevant domestic and international law
The right to compensation is contained in section 133 of the Criminal Justice Act 1988, which so far as relevant provides:
(1)	Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
(2)	No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.
(3)	The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
(4)	If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.
The Criminal Appeal Act 1995, by section 28, added a new subsection to follow subsection (4), above. The new subsection provides:
(4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to:
(a)	the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;
(b)	the conduct of the investigation and prosecution of the offence; and
(c)	any other convictions of the person and any punishment resulting from them.
Section 133 of the Criminal Justice Act 1988 was enacted in order to give effect to Article 14(6) of the International Covenant on Civil and Political Rights, to which the United Kingdom is a party. Article 14(6) provides:
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
This Article closely resembles Article 3 of Protocol No. 7, which the United Kingdom has not ratified.
COMPLAINTS
1.	The applicants complained under Article 1 of Protocol No. 1 of the Convention that the deduction from the compensation payable to them of the alleged costs of board and lodging whilst imprisoned constituted a deprivation of or an interference with their right to property.
2.	They also complained under Article 8 that the deduction of board and lodging costs amounted to a breach of the right to respect for their home, family and private lives.
3.	Finally, the applicants complained that the disparity in the approaches of the assessors who determined their compensation claims and that of their co-convicted constituted a breach of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.

THE LAW
A. The applicant's submissions
The applicants complained that, pursuant to section 133 of the Criminal Justice Act 1988, they had a right to compensation. They argued that either this right, or indeed the compensation itself, amounted to a possession for the purposes of Article 1 of Protocol No. 1, and that deducting a proportion for saved living expenses amounted to a deprivation of their possessions. They further contended that the same facts gave rise to a breach of Article 8 of the Convention, and that the differential calculation of their compensation and that awarded to their co-accused amounted to a violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol 1.
B. The Court's assessment
The question arises at the outset whether the applicants have exhausted all domestic remedies.
The Court recalls that, while in the context of machinery for the protection of human rights, the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I).
The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). Insofar as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument of violation of the Convention right, it is that remedy which should be used. If the complaint presented before the Court (for example, unjustified interference with a right of property) has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of the Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III).
The Court notes that, since the coming into effect of the Human Rights Act 1998 in October 2000, Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1, which have been invoked before the Court, have been directly applicable within the national legal system. The applicants could therefore have relied on these provisions in the domestic courts and complained of violations of the rights guaranteed thereby. The Court further notes that in the proceedings in the House of Lords neither of the applicants appears to have expressly relied on any of these articles of the Convention or Protocol or to have made any reference to the Convention itself with the consequence that the House of Lords never addressed the issues raised under the relevant provisions or reached a conclusion on whether the applicants' rights had been violated.
In sum, the applicants did not provide the national courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, namely the opportunity of addressing and thereby preventing or putting right, the particular Convention violation alleged against it (see, among other authorities, Azinas v. Cyprus, cited above, § 41).
Consequently, the applicants failed to exhaust the available domestic remedies and the application must be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 in fine of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
		Giovanni Bonello 
	Deputy Registrar	President