Teina Pora has been given the thing he said he wanted most – a formal apology for the 22 years he wrongly spent behind bars as an innocent man. He also has been offered $2.5 million in compensation. Applying the Cabinet’s own principles, it ought to be a minimum of $4.5 million, writes professor of law Andrew Geddis

Let’s say you’re someone like Teina Pora (or David Dougherty, or Aaron Farmer, or Krishla Fuataha, Tania Vini or Lucy Akatere) and have been put behind bars after being wrongfully convicted for a crime you demonstrably never committed. Once that truth becomes apparent, you’d think you ought to have some sort of legal right to pretty hefty compensation for your ordeal. After all, depriving an innocent person of their liberties, for years, for decades even, while wrongly labeling them a criminal is one of the worst things that we as a society can do to someone.

If you did think that, you are wrong. You may get an offer of compensation from the government for your ordeal – as Teina Pora just has – but only if the government decides it wants to give it to you and only in such amounts as the government thinks appropriate. Such payments are considered “ex gratia”; basically, they are given from the goodness of the government’s heart. There is no recognized legal right to compensation for wrongful imprisonment (ie being lawfully sent to jail when actually innocent) in New Zealand.

Then to make things even messier, if you are falsely imprisoned (ie held in jail or another form of custody without lawful reason) you do have a legal right to compensation. So if the police unlawfully stop your car and put you in handcuffs while they search through it, you can go to court and get an award of damages to compensate you for your loss of liberty.

This odd disjunction – you have a legal right to damages in one situation, but not in another very similar one – has been recognised. According to Cabinet’s guidelines on making ex gratia payments to persons wrongfully convicted, “the calculation of compensation payments under the Cabinet criteria should be firmly in line with the approach taken by New Zealand courts in false imprisonment cases.”

That makes sense, right? The same basic liberty interests and principles of justice are at stake in each case. So you’d expect the same approach to calculating compensation to apply in each situation.

However, these guidelines then go on to more specifically set out how compensation for wrongful imprisonment should be calculated:

The starting figure for calculating non-pecuniary losses should be set at $100,000 and that this base figure is to be multiplied on a pro rata basis by the number of years spent in custody so that awards for non-pecuniary losses are proportional to the period of detention …

Only those cases with truly exceptional circumstances would attract general compensation that is greater than $100,000, and that on average the relevant figure should even out around $100,000.

(For the non-lawyers out there, “non-pecuniary losses” basically means the pain and suffering caused by being deprived of your liberty and contact with others whilst in jail. By contrast, “pecuniary losses” covers things like lost income or missed economic opportunities.)

It’s this basic $100,000-a-year approach that pretty much led to Pora’s $2.5 million pay-out. His 22 years of wrongful imprisonment x $100,000 gives a base figure of $2.2 million, with an additional $300,000 then added to compensate for his pecuniary losses.

Well, we could take issue with the relatively low amount given for that second aspect of Mr Pora’s compensation. But, leaving that to one side, where did the government’s base figure of $100,000-a-year for non-pecuniary losses came from?

Formal – although, remember, not legally binding – Cabinet guidelines to deal with cases of wrongful imprisonment date back to 1998. However, in September of 1999 the Court of Appeal considered how much individuals falsely imprisoned for a significant period of time ought to receive by way of compensation. It did so in a case called Manga v. Attorney General, involving a prisoner who was accidentally (and unlawfully) kept in jail for some eight months (252 days) past his release date.

Here’s what Justice Hammond said for the Court about the appropriate level of damages to award in such cases:

[95] I think I have to make my calculation transparent. I first have to identify a starting point. This is not the worst kind of case — imprisonment which was unlawful from the outset, and then a long period of confinement, under protest. Mr Manga was properly sent to jail. He served his appropriate sentence, and was then unlawfully kept for an inordinate period of time, under protest. The first class of case could conceivably attract general damages in excess of $100,000 for the loss of liberty. The range for the class of cases I am here considering could, I think, be $50,000 to $100,000. I emphasise that in stating that range, I am addressing long “overruns” of imprisonment.

[96] I consider that a miserly approach should not be taken to this particular, and very serious breach of a fundamental right.

There are a number of points to note about Justice Hammond’s statements. First of all, the figures cited apply only to Mr Manga’s non-pecuniary losses, not any additional pecuniary loss he may have suffered.

Second, Teina Pora’s situation is analogous to the “worst kind of case” on Justice Hammond’s scale – a person the law ought not to have allowed to be imprisoned (as he is in fact innocent) subjected to a long period of confinement, under protest.

Third, $100,000 for eight months of unlawful imprisonment scales up to $150,000 for 12 months. Yet when Cabinet redesigned its guidelines in 2001, for some reason it seems to have interpreted Justice Hammond as indicating $100,000-a-year is appropriate. That looks like a basic mistake to me.

And finally, these figures were set back in 2001. Given the time value of money (or, if you prefer, adjusting for inflation), $150,000 back then now equates to $207,241. Furthermore, the High Court recently handed down a decision in which the judge specifically states that “it is inappropriate not to make some allowance for inflation” when considering damages for false imprisonment.

So, if we were to take the Cabinet guidelines at their word – compensation should be “firmly in line with the approach taken by New Zealand courts in false imprisonment cases” – then the appropriate present day starting point for cases of wrongful conviction and subsequent imprisonment would appear to be some $207,000 per year served. Which would have given Mr Pora a minimum of $4.5 million for his time behind bars as an innocent man.