Aggravated, Exemplary and Restitutionary ... - Law Commission

If the verdict of the jury can be explained only on one view of the
facts, that view must be adopted as the basis of the sentence, but if
more than one view of the facts would be consistent with the verdict,
the sentencer may form his own view in the light of the evidence, and
pass sentence on that basis ... 673
We anticipate that the civil courts, faced with a similar dilemma, could follow this
approach.
1.90 We have therefore concluded that the availability and assessment of punitive
damages should always be determined by a judge, and not a jury.
1.91 On the basis that the judiciary is to assess punitive damages, we support, inter alia,
two judicial (or non-statutory) techniques for maximising consistency in
assessments of punitive damages awards. These are techniques which, to a
significant extent, mirror those employed by the Court of Appeal in Thompson v
MPC 674
in relation to assessments of both compensatory and exemplary damages
for false imprisonment and malicious prosecution. The main difference is that, at
present, those techniques have been thought necessary only in jury trials. We
would support their application even if, as we suggest, only judges should
determine the appropriate sum of punitive damages.
1.92 The first technique would involve judicial development of a tariff for punitive
damages analogous to that for compensatory damages for personal injury and
death. Once a tariff has emerged - as we anticipate that it is likely to, in time - the
assessment of punitive damages might be no more unpredictable than the assessment
of damages for, say, personal injury. The second technique would involve an attempt
to structure judicial discretion through the promulgation of guideline judgments by the
Court of Appeal. This is a technique that is used to secure greater consistency in the
field of criminal sentencing. For example, the Court of Appeal might set out
benchmark figures together with aggravating and mitigating factors. Such guidelines
would serve to structure the court’s discretion in a more sophisticated and flexible
manner than could be achieved by any statutory test, and might cover matters such as:
(1) the relationship, if any, between the harm suffered and the size of the award;
one view of the facts. The jury was asked to indicate the basis for its verdict, but it refused
to do so. The judge sentenced the appellant on the facts as they appeared to him to be.
Appealing against sentence, counsel for Mrs Cawthorne argued inter alia, that if a vital issue
of fact had not been resolved, and could be resolved, it had to be resolved by the jury, not
the judge; and that if the jury has not resolved the issue, the judge should proceed on the
factual basis which is most favourable to the defendant. The Court of Appeal rejected these
arguments. It was entirely for the judge to decide whether the jury should be asked to
indicate the basis of its verdict. In many cases the judge would not wish to do so; indeed,
there might be “grave dangers” in judges asking juries how they have reached particular
verdicts: [1996] 2 Cr App R 445, 450. Where the jury had not resolved the issue of fact, the
judge was entitled to sentence the accused on the basis of the facts as they appeared to him
to be from the evidence he had heard: [1996] 2 Cr App R 445, 451.
673 Archbold, Criminal Pleading, Evidence & Practice 1997, para 5-9.
674 [1997] 3 WLR 403.
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