The assessment of compensation is undertaken by an independent assessor, appointed by the Scottish Ministers, who is experienced in the assessment of damages. In reaching an assessment, the independent assessor will apply principles similar to those on which claims for damages arising from civil wrongs are assessed. The assessment will take account of both pecuniary losses (that is economic loss such as loss of wages) and non-pecuniary loss (that is non-economic loss such as mental suffering) losses arising from the wrongful charge or conviction and/or loss of liberty.
No deduction will be made from the award for pecuniary loss for saved living expenses (that is living expenses which the applicant would have incurred but for being imprisoned/detained).
The Scottish Ministers will consider the extent to which any expenses, legal or otherwise, incurred in pursuing an application for compensation should be met as part of the claim for compensation.
It is anticipated that the submissions regarding a successful applicant's losses will be prepared by their solicitor, or other legal representative, who is handling the application for compensation. The reimbursement of any counsel's fees in connection with those submissions will not be made as a matter of course, and the prior permission of the independent assessor must be obtained before counsel is engaged by the solicitor. A case must be made to the Scottish Ministers in support of the use of counsel, setting out in full the justification for it and the estimated costs involved.
In submitting observations, solicitors should state, as well as any other reasonable expenses incurred by a successful applicant, what their own itemised schedule of costs and expenses are expected to be. This should include estimated further costs for handling the final assessment. All other costs, for example expert employment, accountancy or medical reports, should be itemised fully and listed as disbursements. These will be paid in full, at the discretion of the Scottish Ministers, only if they are considered reasonable, necessary and proportionate, in respect of the application.
In considering the circumstances leading to the wrongful charge or conviction, the independent assessor will 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 applicant's own conduct. The independent assessor will also have regard to any other convictions of the applicant and any punishment resulting from them.
Under section 133(4) of the Criminal Justice Act 1988 the determination of the amount of the award is entirely for the independent assessor. The Scottish Ministers have no power to vary that determination. Although in ex gratia claims the independent assessor's role is strictly to advise the Scottish Ministers of the amount to be paid, in practice the Scottish Ministers will regard themselves as bound by the independent assessor's recommendation.
A successful applicant will be told which type of payment will be made.
The assessor will not enter into correspondence or discussion about the award, nor is this a matter for negotiation. The Scottish Ministers would consider approaching him/her on a successful applicant's behalf only if, in response to written representations, the Scottish Ministers consider that there are good grounds for doing so. Such grounds are likely to be limited to situations where there is evidence that the assessor had failed to take a material point into account, or had taken into account erroneous or irrelevant material.
A successful applicant is not bound to accept the award that is made by the independent assessor. If an applicant does not accept the amount awarded they are free to pursue the matter by other means, for example by way of a civil claim for damages.
It is advisable to seek independent legal advice from a solicitor or a Citizen's Advice Bureau or Law Centre. The Scottish Government and its staff will not provide legal advice to members of the public.
If civil legal proceedings for damages are outstanding or commenced after an applicant has been successful, the court and/or the defendant in such legal action will be informed of the details of the award. This is to prevent double recovery of compensation.
It should be noted that a decision to pay compensation is not an admission of legal liability on the part of the Scottish Ministers.