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oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants; (c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public (this guidance would not be appropriate if the claim were to be met by insurers); (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.

“(13) Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.

“…….In the case of exemplary damages we have taken into account the fact that the action is normally brought against the chief officer of police and the damages are paid out of police funds for what is usually a vicarious liability for the acts of his officers in relation to which he is a joint tortfeasor: see now section 88 of the Police Act 1996”.

“……Where a false defence is persisted in this can justify an increase in the aggravated or exemplary damages (see Marks v. Chief Constable of Greater Manchester (unreported), 27 November 1991); Court of Appeal (Civil Division) Transcript No. 1083 of 1991), but as this will almost invariably be the consequence of an unsuccessful defence, the guidance as to figures we have given takes this into account. If a malicious prosecution results in a conviction which is only set aside on an appeal this would justify a larger award.”

14.Difficulties are frequently encountered in assessing compensation for unlawful detention, particularly where it has been protracted.  There is a dearth of authorities as regards imprisonment of more than a couple of months.  Further, the Courts have regularly indicated that in assessing basic damages for unlawful detention it is inappropriate to seek to abstract a tariff rate from past awards and apply that in a mechanistic fashion to other circumstances.  In R (O’Brien) v Independent Assessor27 Mr Justice Maurice Kay accepted the Claimant’s submission that an award for long term loss of liberty should bear a reasonably proportionate relationship to the awards that exist for shorter periods of wrongful imprisonment28.  

27 [2003] EWHC 855 (Admin).

28 See paras 28-30.  Although the case was appealed on other grounds, the Assessor did not appeal against this conclusion.

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